حدود سلطة القاضي في تطبيق العقوبة السالبة للحرية بعد عفو أولياء الدم في جريمة القتل العمد : دراسة مقارنة بين التشريعين الإماراتي و الأردني

الملخص EN

Article (331) of the UAE Federal Criminal Law, derived from the rules of Islamic Shari’ah, punishes first-degree murder with retribution based on petition by the next of kin of the deceased victim.

Yet, according to the Maliki school of jurisprudence followed in the UAE, a custodial sentence of detention for one year shall be applied when the penalty of retribution is waived through pardon, in accordance with Article (332 / 3) of the same Law.

This study addresses a key problem manifested in the absence of a provision in the Jordanian Criminal Law that considers the victim’s next of kin’s pardon in first-degree murders as a mitigating factor by which the penalty of capital punishment would be replaced with a custodial sentence.

Due to the absence of such provision, the Jordanian Court of Cassation has endeavored to set a criterion for such situations in light of the mitigating judicial reasons theory.

The judgments of the Jordanian Court of Cassation, however, seem contradictory.

At some occasions, the said court requires that the pardon be made by all of the next of kin of the victim, while at other occasions the court settled for the pardon by only one of the next of kin.

Hence, this study aims to address the following questions: what are the limits of the judge’s power to replace the penalty of retribution or capital punishment with a custodial sentence based on the next of kin’s pardon in first-degree murders under the UAE and Jordanian legislations ? What is the effect of the sentence of detention after the next of kin’s pardon on the degree of murder under the UAE legislation ?.