DETERMINATION OF CRIMINAL PUNISHMENT AND THE INFLUENCE OF HUMAN FACTORS

Abstract

The process of determination of criminal punishment includes the application of legal norm to
the circumstances of a given criminal offence. In the Republic of Serbia there are four
prescribed criteria that the judge has to take into consideration in the process of determination
of criminal punishment: prescribed punishment, purpose of punishment, aggravating and
mitigating circumstances and the achievement of justness and proportionality between the
committed criminal offence and the gravity of the criminal sanction. However, this does not
mean that the judges simply mechanically apply the legal norm, but rather that the judges,
within their discretionary power, assess given circumstances of specific criminal offence. This
involves their intellectual activities, where many human factors are engaged, like their
wisdom, intuition, attitudes and beliefs, moral and ethic values etc. Through observing the
process of decision-making not as a simple mechanical process, but as a human process, the
aim of this paper is to point to some relevant human factors that could affect the court
decision. In that sense, we have to be aware that the role of judges is to use their knowledge,
experience, intuition and wisdom in order to determine punishment which is just and
proportionate to the committed criminal offence and the degree of guilt of the offender.