التفريد العقابي ودوره في تحقيق العدالة الجنائية
بن طاهر, أمينة
مالكي, محمد الأخضر
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My study about: “Individuality of Penalty and its Role in Realizing the Criminal Policy” “Comparative Study”, dealt with the important questions of this subject about Islamic criminal policy and modern criminal policy, starting by the conceptual concretization of the principle to its projections following its types, finishing by mentioning its role in realizing the criminal justice. And to insure achievement of objectives of this study, I divided the research to two large parts, where I discussed in the first one about the concept of individuality of penalty and its concretization in the Charia and law, and in the second one, I presented types of individuality of penalty and the role of each one to realize the criminal justice, and I reached the following results: That the individuality of penalty is considered as one of the most important principles on which the good criminal policy is based, and on elements exploring its content, and also, is based on another principle having its weight in the domain of the sanction: “principle of proportionality”, both according to Islamic or legal perception. The realizing of the principle of individuality of penalty and its elements demands existence of conditions and the most of them concerns the judicial system, and they are necessities that can helps it to realize desired criminal justice, and the most important one is the specializing of judge and its rehabilitating in one way, and the necessity of finding other voices helping him. The close connection between the principle of the individuality of penalty and criminal justice makes its importance in increase, and we have approved that the present connection is embodied in a relationship of integration between them, objectively and procedurally and teleology. We deliberately prove the real concretization of the principle of the individuality of penalty and we found that its application refers to Islamic criminal policy and its specific penal systems, this good policy based on fair foundations and searching to realize justice. In addition to this, the difference between criminal schools and their different programs, had a different impact in the report of the principle of the individuality of the penalty, although each one of them has its own vision about idea of justice.My study about three kinds of individuality of penalty: (legislative, judicial and executive), conforms to what is decided in the Islamic Charia and what is done by modern laws, making me appreciate that each kind has its own standards, mecanisms and reference on which it is based, and its effectiveness in realizing criminal justice. Also, adopting theory of summary procedures to speed up procedures to find solutions to conflicts is considered as one of the most important principles of Islamic legislation that the modern laws aim to expand its execution to find solution to criminal justice crisis. The achievement of the individuality of penalty and to insure the criminal justice depended from possibility of consolidating efforts of legislator and judge and executor together and the existence of important exigencies including materials that help each authority, to understand new forms of crimes and specifying criminal sanctions decided and leading to a solution to criminal justice crisis even using non criminal methods “consensual”.
- Doctorat droit privé