Some Aspects of the Analysis of Circumstances Mitigating the Punishment in its Individualization
Abstract
The article deals with the legal nature and significance of circumstances that mitigate the punishment as a criterion for the individualization of the punishment when it is imposed. It is stated that sentencing objectively acts as the final stage of justice. It is ascertained that the achievement of the goals of restoring social justice, correcting the convicted and preventing the commission of new crimes is possible only with the unconditional observance of the general principles of sentencing. Therefore, there is a system of rules regulating the process of individualization of the punishment and providing the uniformity of the application of the criteria established by law; these criteria are used by the court in determining the type and the measure of punishment for specific persons found guilty of an offense. The implementation of the tasks of criminal legislation (correcting the convicted person and preventing him from committing new crimes) to a great extent depends on the lawful, fair and justifiable punishment which is imposed on the perpetrator. As a consequence, the legal regulation of the general principles of sentencing is unconditional. In imposing a sentence, the court must apply an individual approach, taking into account the particularities of each crime and the person who committed it. Circumstances that mitigate the punishment also play an important role in this process.
The analysis of the judicial practice shows the ambiguity of the approaches to take into account the circumstances that mitigate the punishment when it is imposed. Sentencing is often limited by courts only with statements that all the circumstances of the crime were taken into account without a detailed analysis of the facts. In order to avoid the aforementioned shortcoming, in the motivation part of the sentence, the court must not only list the circumstances that it found to be mitigating in the case, but also justify how they reduce the degree of the public danger of the crime and the perpetrator. In addition, the author investigates the issues of the criminal significance of circumstances that mitigate the punishment and gives reasons for inexhaustibility of the list of these circumstances.
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