نقش قاضی اجرای احکام در فردی سازی ارفاقیِ واکنش علیه جرم (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
سیاست کیفری نوین ایران در ابعاد تقنینی، قضایی و اجرایی در راستای ارفاقی شدن است. از سوی دیگر فردی سازی اجرای مجازات، تضمین کننده اهداف اصلاحی کیفر است. نوشته حاضر بر ضرورت «تلفیق سیاست فردی سازی کیفر با سیاست کیفری ارفاقی در پرتو نقش آفرینی قاضی اجرای احکام» تأکید دارد. پرسش اینکه اختیارات کنونی تا چه اندازه امکان متناسب سازی نحوه اجرای مجازات با شرایط فردی، خانوادگی و اجتماعی بزهکار در راستای سیاست کیفری ارفاقی را فراهم می کند؟در این نوشتار، به روش توصیفی- تحلیلی، اختیارات تفریدی قاضی اجرای احکام از منظر سیاست کیفری ارفاقی نقد و تحلیل شده است. یافته های پژوهش نشان می دهد که اختیارات قاضی اجرای احکام، تنها در چارچوب «تفرید اولیه» -مبتنی بر ویژگی های فردی خودِ محکومٌ علیه- تعریف شده است، در حالی که فردی سازی ارفاقی، مستلزم ایجاد ساز و کارهای «تفرید ثانویه» -مبتنی بر شرایط بیرون از شخصیت محکومٌ علیه و نحوه رفتار او در حین اجرای مجازات نیز هست.The role of the Execution judge in the arbitrary individualization of the reaction against crime
Iran's new criminal policy in the legislative, judicial, and executive dimensions is in line with the rapprochement. On the other hand, the individualization of the execution of the punishment guarantees the reformative goals of the punishment. The present article emphasizes the necessity of "combining the policy of individualization of punishment with the criminal policy of rapprochement in the light of the role of the execution judge".The question Is: to what extent do the current powers provide the possibility of adapting the execution of the punishment to the personal, family, and social conditions of the criminal in line with the arbitrary criminal policy? In this article, in a descriptive-analytical way, the discretionary authority of the judge in the execution of the sentences has been criticized and analyzed from the perspective of arbitrary criminal policy. The findings of the research show that the authority of the judge to execute sentences is defined only in the framework of "primary exclusion" - based on the individual characteristics of the convicted person, while le the individualization of fraternity requires the creation of "secondary exclusion" mechanisms - based on conditions outside the personality of the convicted person and her/his behavior during the execution of the sentence.1.Introduction The criminal process does not end with the determination of the punishment, but the main stage after the verdict is the "execution of the punishment" and the effectiveness of the reaction against the crime and the realization of the goals of the punishment depends on how the punishment is applied and how much and how much the behavior of the "judge who executes the sentences" in the "pre-decision" stage. On the other hand, arbitrary criminal policy has many benefits for society, the accused, and the judicial system.Some believe that the execution judge entered the criminal system with the purpose of individualizing punishments and has duties and powers in the field of suspension, postponement of sentencing, parole, partial release, and alternative punishments of imprisonment. (Mousavi Fard et al., 2016: 13) Therefore, the judge must know that she is an independent judge and her decisions can be appealed (Cartier, 2001: 90).From the analytical point of view, what distinguishes the "current situation" from the "ideal situation" is the type of activism of the executive judge to combine the policy of individualization with the arbitrary policy. In this context, the main question of the research is whether the current authority of the judge to execute the sentence and the legal mechanisms of individualizing the execution of the punishment can be considered in line with the arbitrary criminal policy. MethodologyIn this article, in a descriptive-analytical way, the discretionary authority of the judge in the execution of the sentences has been criticized and analyzed from the perspective of arbitrary criminal policy.For this purpose, the legal powers of the judge for the execution of sentences include "independent actions" and "dependent actions" and under each section, examples of "mandatory actions" and "discretionary actions" of the judge have been reviewed and in each case, to create areas of "individualization of rapprochement", while identifying and highlighting existing gaps and weaknesses, solutions have been proposed to improve the role of the judge in the execution of sentences. Results and DiscussionFrom the author's point of view, the authority given to the judge for the execution of sentences, rather than being a purposeful and intelligent mechanism in the direction of judicialization of punishment and "executive- arbitrary segregation", is merely a form of incomplete division of work and removal of the workload from the shoulders of court judges.On the other hand, merely involving a person with judicial expertise in the execution stage of the sentence, without giving independent legal powers and without taking into account a corrective approach in the application of punishment, is only an administrative shift rather than a judicial transformation in line with the knowledge of criminology.In such a situation, where the final decision regarding the use of reconciliation mechanisms is in the hands of the court judge, perhaps we can talk about "judicial exclusion", but talking about "executive segregation" is very difficult and far from the realities and existing legal capacities. From this point of view, the exclusive jurisdiction of the judge for the execution of sentences requires having independent powers and turning "dependent actions" into "independent powers".In this regard, the author's proposal, on the one hand, is to amend the legal provisions related to the authority of the judge of execution sentences to increase the independent authority of the judge of execution of sentences to individualize the execution of punishment and on the other hand, the collection of scattered provisions in the Islamic Penal Code and the Criminal Procedure Law is under Article 489 of the latter law. ConclusionsMerely giving authority to the judge to execute sentences without formulating and drawing a specific criminal policy will not only cause the punishments to be effective and not have a corrective effect but rather, sometimes the neglect and even abuse of the executive authority's aggravating powers will cause strictness on the convict and her exclusion from correctional institutions.From this point of view, drawing and understanding the arbitrary criminal policy - which is the new strategy of Iran's criminal policy - and justifying the judges who execute sentences to use the capacity of arbitrary institutions, will provide the basis for the individualization of arbitrary and the realization of the reformist character of punishment.Also, the individualization of punishment should not be based only on personality traits and individual conditions of self-condemned (primary segregation), but family, environmental, and peripheral factors and possibilities of punishment should also be considered in individualization (secondary segregation).For example, the density of the prison population the spread of disease in the prison, or the prevalence of drug use or gross immorality in the prison environment should be a reason for the individualization of the execution of the sentence by the judge.The intended mechanism can be in the form of adding a clause to Article 18 of the Islamic Penal Code, with the content that the court takes into account the following matters when issuing a penalty sentence:”… Side factors beyond the defendant's will and conditions such as prison facilities and population, natural disasters such as floods and earthquakes in the defendant's residence or the place of punishment, general health conditions such as widespread diseases and…” Selection of ReferencesAhmadi Movahhed, Asghar (2007), Execution of criminal sentences, third edition, Tehran: Mizan publishing house. [In Persian]Ahmadzadeh, Rasul and Tam, Mojtabi (1402), Procedure of Punishment, first edition, Tehran: Judiciary Publications. [In Persian]Heydari, Ali Morad (2016), General Criminal Law; Jurisprudential-legal review of reaction against crime, second edition, Tehran: Samt Publications. [In Persian]Jessica Breen(2008), “Prisoners’ Families and the Ripple Effects of Imprisonment”, Studies: An Irish Quarterly Review, Vol. 97, No. 385, The Family Today (Spring 2008), Published By: Messenger Publications, pp. 59-71. Louise Robinson, Sue Tucker, Claire Hargreaves,(2022), “Providing Social Care following Release from Prison: Emerging Practice Arrangements Further to the Introduction of the 2014 Care Act”, The British Journal of Social Work, Volume 52, Issue 2, March 2022, Pages 982–1002,Miller v. Alabama, (2012), “Banning mandatory juvenile life-without-parole sentences”, Washington and Lee Law Review, Volume 76 Issue 1 Article 4. pp 312-320.Rahmdel, Mansour (2014), Criminal Procedure Code, third volume, second edition, Tehran: Justice Publishing House.Tavajjohi, Abdul Ali (1402), Arbitrary institutions in the Islamic Penal Code approved in 2013, first edition, Tehran, Judiciary Publications. [In Persian]
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