The power of the discretionary judge To reduce and intensify the punishment
Author: Ali Hamza Asal Alkhafaji, Sadeq Rasool Hasoon
Download PDF
Abstract -
The discretionary power of the criminal judge is only an embodiment of the idea of separating and confirming the punishment. The legislator not only provides for a lower and higher penalty, but gives the judge discretion in mitigating and aggravating the circumstances. Is not a form of compassion for the accused, but that this authority is bound by certain standards and controls, whether related to the crime or the criminal, and the choice of qualitative punishment shows that the judge has the power to assess the appropriate punishment by choosing the type of punishment that fit the circumstances of the personal criminal, Besides what The judge has the power to assess the appropriate punishment which enables him to exceed the limits prescribed by law. He has the authority to choose a penalty of the more severe type, when the circumstances of the case are available, The so-called mitigating circumstances where there are mitigating reasons to do so.
The methods of mitigation and emphasis on the advanced method are two exceptional ways of separating judicial punishment, which is intended to allow the judge to use his discretionary power to take into account the factual circumstances, to address the legislative lack and to develop the law, and to make the punishment more appropriate to the identity of the offender in the light of his behavior and conduct during the execution period. To achieve the same goal, and from these regimes amnesty for punishment.
The first requirement will be the concept of mitigating circumstances, and (ii) the extent of the judge's power to determine mitigating circumstances, and (iii) the scope of the penalties covered by the judge's power to mitigate and the consequences.