The role of the directive on the degree of guilt in the judicial determination of punishment. Comments in the context of the Polish Penal Code

Abstract

This study focuses on the controversial issues related to one of the directives of the judicial assessment of punishment, i.e., the directive of the degreeof guilt. The limiting approach to guilt has raised some objections in literature (Article 53 § 1 of the Polish Penal Code in principio). In addition, the lack of statutory determinants which influence the assessment of the degree of guilt was no less controversial. Given the above issues, the article aims to: 1) determine whether the normative requirement that the sentence severity cannot exceed the degree of guilt and the imposition of a sentence which isproportional to the guilt are mutually exclusive, as well as to 2) verify the problematic nature of the lack of identification of factors determining the assessment of the degree of guilt. Based on the carried out analyses, it wasconcluded that reducing the role of guilt to limiting the level of punishment does not per se mean imposing on the perpetrator a punishment which is disproportional to the degree of guilt. Within the framework of the present analyses, it was attempted to prove that it would be particularly postulated to indicate a catalogue of circumstances which would act as quantifiers, enabling the gradation of guilt.