The public question: why the same crime but different punishment?

Judicial decisions - especially in criminal cases - are constantly debated in the public sphere. The public often asks: why does one person get, say, 12 years for a certain offence, while another gets only six, even though the nature of the crime seems identical? This question has been raised once again by the high-profile case of sexual violence against minors.

According to Egidijus Kieras of AVOCAD, different sentences for seemingly identical crimes are not a sign of judicial arbitrariness. On the contrary, he said, it reflects an individual application of justice based on the circumstances of the particular case, the logic of the law and a clearly defined methodology.

Average sentences - a guide for courts

Egidijus Kieras points out that under the Criminal Code of the Republic of Lithuania (CC), each crime is punishable by a range of sentences - for example, murder can be punishable by between 7 and 15 years of imprisonment. However, this does not mean that all convicted persons automatically receive an "average" of 11 years. Courts look at the so-called average sentence - a mathematical point between the minimum and maximum sentence, which acts as a reference point. The court "steps" from this average to one side or the other, depending on the aggravating or mitigating circumstances found in a particular case.

What determines whether a sentence increases or decreases?

The court must look at the whole context of the crime, not just the name. Here are some examples. Aggravating circumstances that lead to a harsher sentence:

• The offence has been committed repeatedly;
• The crime was committed out of selfish motives;
• Victim - a minor or vulnerable person;
• The crime was committed by a group of people acting together.

Mitigating circumstances that may lead to a reduction of the sentence:

• Guilty plea;
• Sincere regret;
• Cooperation with law enforcement;
• Compensating or attempting to compensate for damages;
• Influence of personal illness, addiction, psychological state.

Emotions vs. legal criteria

In a high-profile case of sexual violence against boys, the public is shocked not only by the crime itself, but also by what some consider a "too light" punishment. However, this case illustrates once again that a court cannot rely on emotions, but only on the facts and legal circumstances of the case. If a person has cooperated with law enforcement, has confessed, has shown remorse, and may have no previous convictions, all of this has legal significance. In this case, the sentence imposed, although it may have upset many people, was probably motivated by all the criteria set out in the law. Often in cases of this kind, the lawyer says, punishment is not the only element of the court's decision - probation supervision, registration in the sex offenders' register, therapeutic measures, etc. may be ordered.

When imposing a sentence, the court must give detailed reasons why it has imposed that sentence. The court's decision is not an opinion, but the totality of the facts analysed, the law and the assessments made. "However, the role of the public is also important in this process - not just to read the headlines, but to read the court rulings, to study the circumstances of the case, to understand the logic of the criminal procedure," emphasises Mr Kieras.

Changes in legal technique don't change the substance: the "average" hasn't gone anywhere

The amendment to Article 61(2) of the Criminal Code of the Republic of Lithuania, which entered into force on 1 January 2024, abolished the previous obligation to calculate the sentence from the average. Until then, the law stated that, in the presence of both aggravating and mitigating circumstances, the court should focus on the average sentence, and move away from it depending on the weight of the circumstances. The amendment has made this wording more flexible, giving the court more discretion.

However, according to AVOCAD's lawyer Egidijus Kieras, actual case law shows that the "principle of averages" continues to be one of the main points of reference for sentencing:

"Yes, technically the imperative is no longer there, but in the structure of most sentences it is very clear that the courts are still taking an average approach. In terms of motivation, it seems that only the concept has disappeared, but not the principle itself", says Kieras.

This is particularly important from the point of view of legal interpretation. Consistency and transparency in sentencing requires a certain degree of methodological consistency. And while the wording of the law may change, the reasoning of the courts must remain sound, comparable and predictable. In other words, the idea of the "average" - as a reference point - remains alive in both professional judicial logic and academic doctrine. It is a part of the architecture of the law that cannot be so easily disconnected from the actual sentencing process, even if it is no longer formally part of the law. This situation reveals a broader insight: changes in legal technique do not necessarily change the substance of the law, as long as the logic remains the same in practice. This shows once again that case law is often more stable than the wording of laws.

Criminal law - accountability based on reasoning, not emotion

As Egidijus Kieras, a lawyer at AVOCAD, points out, criminal law in Lithuania is quite balanced, but its application requires not only professionalism, but also consistent public education. This depends not only on confidence in justice, but also on a healthier public opinion. "When you know how punishment is actually shaped, you are less inclined to shout 'the court is incompetent'," says Kieras. Different sentences for the "same" crime do not mean inequality - they reflect the principle of individual justice. Each person is unique, each case is different. Justice is not a mathematical exercise - it is a profound process in which both the law and the person matter.