Tom Vander Beken and Annelies Balcaen, Dossiervoering door de rechter: beperkingen op de discretionaire bevoegdheid van de rechter bij de straftoemeting, Lawforce working paper 2009/5

This paper focuses on the discretionary powers of judges when sentencing and the limitations thereof.

In principle, judges have an enormous amount of freedom when deciding on the choice of penalties and eventual additional measures and on the level of punishment. The boundaries of the discretionary competence of the judge are formed by the legal maxima and minima of penalties and by different legal provisions on the (mutual) exclusion, reduction and increase of penalties. Furthermore, a number of legal provisions provide guidelines for the judges and a number of procedural provisions limit their freedom of decision making. Finally, some general principles influence the discretionary power. The most important one – the one with the largest influence on the discretion – is the obligation to motivate the decisions taken.

Full paper (Dutch) here