سلطة القاضي الجزائي في الاختيار النوعي وتدرج العقوبة

Abstract EN

The legislator has divided the task of determining the punishment between the law and the judiciary, where the legislator outlined two limits for punishments in certain cases, and has given the judge the discretion between these two limits.

In some cases, judges have not granted the authority to choose between punishments, as their role would be limited to identify the elements of the crime, and therefore the application of the appropriate punishment.

In other cases, the legislator has provided judges with other means when applying the punishment in the sense that there are more than one punishment for a crime, and it is at the judge's discretion to choose the most suitable one.

This is known as the doctrine of "individualization of punishment".

Therefore, we find that most legislation, including Oman's penal legislation, establishes specific legal means representing the legal scope of the work of the criminal judge and their discretion with regards to the punishment, and among these means is the qualitative selection of the punishment and its gradual quantification.

This research will shed light on the topic of the authority of the criminal judge in the selection and graduation of punishment, in light of the provisions of the Omani judiciary and clarifying the position of the Omani legislator.

The importance of this research is in that it sheds light on the subject of the discretion of the criminal judge in estimating the punishment.

This topic is important from both a scientific and practical prospective, as it is the judiciary that gives the law effectiveness in general through its application, depending on its discretion, and this authority decrease or increase in accordance with the legislator's approach in stating the punishment prescribed for the crime.

The research followed the descriptive approach of the legal texts and the analytical approach, with the aim of tracking the historical development of the discretion of the criminal judge, as well as analysing the areas and scope of its application.

The research ends by many of results and recommendations, and it was the most important that the expanding legislation in alternative punishments, such as adopting alternative punishments and finding a variety and difference in punishments other than imprisonment and fines which would create more appropriate punishments for some criminals according to the circumstances surrounding the commission of the crime.

Additionally, the need for specialized judges in the auxiliary sciences of criminal law such as criminal psychology, criminology, punishment, etc., so that the judge can be clear and accurate.