Abstract
Courts of appeals are the only body that reviews the exercise of the broad sentencing discretion granted to trial courts and that can unify sentencing principles. In this article, we develop a theoretical framework within which appellate courts should make sentencing decisions and analyze the current practice of appellate courts in sentencing decisions.
In the theoretical part, we mainly focus on the standard of review, i.e. in which cases the appellate courts should intervene in the decisions of the first instance courts, and the method of review, i.e. whether the appellate courts should rather check the considerations of the first instance courts or impose a new sentence and compare it with the sentence imposed by the first instance courts. Subsequently, we present empirical findings on the decision-making practice of appeal courts on punishments.
First, we focus on the frequency of appeals filed in the years 2007-2021 by appellant and on the results of these appeals. Next, we analyze in detail 300 judgments by which appellate (regional) courts newly imposed a different punishment in 2016.
We show which changes the appellate courts approached (from which the standard of review can be deduced), how they justified this change (from which it can be inferred review method), how much they communicated with the appellants and what general rules they derived from it. We conclude the article with a discussion of the position of appellate courts and reflections on the possibilities of different approaches to the review of sentences.