The discretionary power of the criminal judge to assess the penalty between its upper and lower limits (A comparative study) | ||
| Journal of Anbar University for Law and Political Sciences | ||
| Volume 13, Issue: 2 part 2, December 2023, Pages 389-434 PDF (846.47 K) | ||
| Document Type: Research Paper | ||
| DOI: 10.37651/aujlps.2023.142963.1066 | ||
| Authors | ||
| Suha Hamoudi Nassar Hamoudi al-Mashhadani* ; Fadel Awad Al-Dulaimi | ||
| University of Anbar\College of Law and Political Science/ Department of law | ||
| Abstract | ||
| After the advent of philosophical theories and modern criminal policy that called for looking at the personality of the offender before issuing the verdict and assessing the penalty, this led to the tendency of most laws in the countries of the world to give the judge discretionary power before issuing the verdict. It is known that the legislator imposes a specific penalty for each act described as a crime, and the legislator often sets a penalty ranging between two extremes, higher and lower, and leaves the judge with discretion in choosing the necessary amount of punishment between these two extremes in order to allow the judge to individualize the punishment in a manner commensurate with the personality and psychological conditions of the offender And health and social conditions, it may happen that two people individually commit two similar crimes, so it becomes clear to the judge when conducting the trial that each of them has special circumstances, so he gives each of them a punishment that may be different despite that both of them have committed the same crime, so he gives the first person, for example, the prescribed minimum While giving the second person its upper limit, the judge may find that lowering the penalty to its minimum level is not sufficient, and that the offender deserves a greater reduction in the penalty, and in this case the judge resorts to the use of mitigating circumstances. | ||
| Keywords | ||
| Discretionary power; ،criminal judge; ،penalty; ،upper limit; ؛; ،lower limit | ||
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