opinions

Request to use clemency

Attorney Ali Mosbeh

We hear this phrase daily in the corridors of the courts, especially in the halls of felonies and misdemeanours, which is the request of the accused or the defense team to the court to use the utmost levels of leniency in sentencing, and we may wonder: What are the degrees of leniency?

And what are its conditions?

In its articles, the Penal Code deals with legal excuses and discretionary circumstances mitigating punishment, which are cases where the judge must, or may, rule for the crime with a penalty that is lighter in kind than prescribed in the law, or less in amount than the minimum set by the law.

Accordingly, in the legislator’s discretion, the penalty he decides may be for special cases more severe than it should be, and therefore the authority has placed the court in its discretion from going down to the minimum penalty.

Mitigating punishment means that the judge replaces the legally prescribed punishment for the crime with a punishment that is somewhat lighter and lesser.

The difference between them is that mitigation when a legal excuse is available is mandatory for the judge, while it is permissible when mitigating judicial circumstances are available.

Among the excuses mitigating punishment are the criminal’s recent age, or the commission of the crime with non-evil motives, or based on a serious provocation unjustly issued by the victim.

If the court deems, in a felony or misdemeanour, that the circumstances of the crime or the criminal warrant clemency, it may mitigate the sentence.

However, if a mitigating circumstance and a mitigating excuse combine in the misdemeanour, the court may order a judicial pardon for the accused.

Based on the foregoing, the mitigation was initiated to achieve the appropriateness between the punishment and special circumstances and cases, and this is considered to enable the judge to make the most correct use of his discretionary power, so the type of crime does not change if the court replaces it with the punishment prescribed for it by a penalty of a lighter type, whether it is for a legal excuse or for mitigating discretionary circumstances, unless The law says otherwise.

The aforementioned considerations that guide the judge in using his discretion in determining the penalty do not have a compulsory nature, but rather are left to the good discretion of the court, especially since the accused has a resort to request the use of clemency, and it is the court that hears any plea from him, request, or mercy, as it is The last and safest resort to present his request and answer under a just and merciful judge.

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