Sentencing on the basis of guilt

Sentencing is the phase where a trial court fixes the punishments foreseen by the law. Deciding the basis of the sentencing is the core issue of this subject. This decision must be based on the requirements of constitutional rule of law principle. In this regard the guilt of the offender must be the basis for sentencing. This requirement entails the necessity to explain the specific meaning of the guilt for sentencing, how to measure its weight and how to convert this measure into a specific sentence length. Even though the principle of guilt puts forward that the guilt of the offender is both the reason and the measure of the punishment, it does not provide explicitly for the circumstances that affect the severity of the guilt or whether the guilt appropriate sentence length can be changed on behalf of the offender. Within our study, how to sentence based on guilt and whether provisions of the Turkish Penal Code are appropriate or not are tackled. The study consists of three parts. In part one fundamental principles are examined and the foundations and the scope of sentencing based on guilt are drawn from the constitutional principles and theories of punishment which provide for the justifications of punishment. In second part it is analysed how to measure the severity of the guilt. In this regard wrong and blameworthiness of the wrong are researched into and the legal provisions are reviewed for their capacity to evaluate the severity of the guilt. In part three the methods for converting the measure of the guilt to a specific sentence length, how to choose the type of the punishment based on the guilt, and whether deviations from the guilt appropriate sentence in the framework of guilt balancing and individualisation of the punishment are discussed. Keywords: Theory of Punishment, Sentencing, Individualisation of the Punishment, Basic Sentence, Final Sentence, Grounds for Discretionary Mitigation, Sentencing Guilt, Act-related Wrong, Outcome-related Wrong, Blameworthiness.