Issue 10 (2018)

THE JUDGE AND INDIVIDUALIZATION OF PUNISHMENT

Authors:

Abstract: Why is the crime rate not decreasing? Why are we still unable to succeed despite the resources concentrated? If we defi ne the law as a system of ideas, values, principles, norms, institutions, methods, mechanisms, processes etc. we acknowledge that the abovementioned components should function orderly otherwise the system might fail. What if there is a mismatch or even contradiction between some of these components? On the one hand, the legislator sets the clear goal within the Penal Code of Georgia – prevention of new crime (article 39). Consequently, the judge is obliged to fi nd the punishment that would be proportional to the individual circumstances of criminal case and the person he/she is going to sentence (article 53). On the other hand, the Penal Code of Georgia does not allow the judge to use suspended sentence (article 63) or a punishment that is milder than the one established by the law (article 55), even when this is preferable or even necessary in terms of proportionality of the punishment (unless there is a plea of bargain). This is a serious contradiction between the goal and the means. Thus no wonder that we have problems in terms of achieving the goal. Therefore, the legislators should revise the matter wisely.

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