Codifying Repression

August 30, 2012

6 minutes read

Summary

In January 2012 the Guardian Council, an unelected body of 12 religious jurists charged with vetting all legislation to ensure its compatibility with Iran’s constitution and shari’a, or Islamic law, approved the final text of an amended penal code. While President Mahmoud Ahmadinejad has not yet promulgated the new bill into law, Iranian officials have described the amendments to the Islamic Penal Code— including more than 737 articles and 204 notes that address various issues ranging from extraterritoriality to the applicability and implementation of punishments—as a new and improved set of laws, and repeatedly cited them as an example of the government’s serious attempt to comply with its international human rights obligations.

However, many problematic provisions of the old penal code remain unchanged, and some of the amendments actually represent a weakening of the rights of criminal defendants and convicts. In many cases the new provisions ignore serious concerns about the severity of the penal provisions and their legality under international law. Some provisions touted as marked improvements by Iranian officials would actually allow judges wide discretion to issue punishments that clearly violate the rights of the accused.

In a limited number of areas it is true that Iranian lawmakers have made improvements to the penal code. For example, a new provision abolishes the death penalty for child offenders (defined as anyone accused of committing a crime under 18 years of age) for crimes that do not carry specific or required punishments in shari’a law. The new code also expands correctional and rehabilitation measures in lieuof imprisonment and other harsh penalties for children, and provides more sentencing guidelines than the old code.

However, under the new penal provisions “discretionarycrimes,” which include punishments for the vast majority of Iran’s national security laws under which political dissidents are tried and convicted in revolutionary courts, remain, for the most part, unchanged.

Furthermore, among its many other shortcomings, the new code includes the retention of the death penalty, including for child offenders in certain circumstances. The new penal code also fails to codify laws for which there are serious punishments, including the death penalty; uses broad or vaguely worded national security laws criminalizing the exercise of fundamental rights; and retains punishments that amount to torture or cruel and degrading treatment, such as stoning, flogging, and amputation. The amendments also retain previously discriminatory provisions against women and religious minorities.

Contrary to repeated assertions by Iranian authorities that the penal code amendments prohibit the execution of children less than 18 years of age, the new law retains the death penalty for children in certain circumstances. Under the new code, children who commit “discretionary crimes”are no longer subject to execution, and courts are instead required to sentence child offenders found guilty of suchcrimes to correctional and rehabilitation measures. This means there is indeed a strict prohibition on the execution of child offenders convicted, for example, of drug trafficking and possession charges, which can be subject to the death penalty under Iran’s draconian anti-narcotics law.

However, the new code also explicitly pegs the age of criminal responsibility to the age of maturity or puberty (bolugh) under shari’a law, which in Iranian jurisprudence, is nine years for girls (eight years and nine months per the lunar calendar) and 15 years for boys (14 years and seven months per the lunar calendar). A judge may, therefore, still sentence to death a girl as young as nine or a boy as young as 15 convicted of a “crime against God” or a crime subject to retributive justice, such as sodomy or murder, if the judge determines that the child understood the nature and consequences of the crime he or she committed.

As with the old penal code, the new amendments provide the death penalty for activities that should either not constitute crimes at all or are not considered among “the most serious” crimes (typically resulting in death) under international law. The new provisions continue to criminalize certain types of consensual heterosexual and same-sex sexual relations outside of marriage, such as adultery and sodomy, under penalty of death. Other crimes that carry the death penalty under the new provisions include possession or selling of illicit drugs and insulting the Prophet Mohammad, his daughter Fatima, or any of the twelve Shi’a Imams.

Another serious flaw in the new penal code is that it allows judges to rely on non-codified law to convict and sentence individuals to crimes and punishments. For example, unlike the old code the new amendments explicitly allow judges to rely on religious sources, including shari’a and fatwas (religious edicts) issued by high-ranking Shia clerics, to convict an individual of apostasy or to sentence a defendant convicted of adultery to stoning. This is true even though there is no crime of apostasy under the penal code and stoning as a form of punishment for adultery has been removed from the new provisions. Though the numbers of individuals executed by stoning or for apostasy are relatively low in recent years, the new provisions fail to prohibit such practices.

The new provisions also allow judges to rely upon their “knowledge” not only in resolving issues related to applicable laws, but also in determining issues of fact and evidence. Under the old provisions, judges often abused this provision and relied upon evidence that should have been made inadmissible to prove guilt or innocence, including confessions extracted through the use of physical torture and extreme psychological pressure. Moreover, under the old code, judges sometimes relied on this provision as a way to introduce non-codified shari’a evidentiary standards to determine the innocence or guilt of the accused. It is not clear whether new provisions defining “knowledge of the judge” in the new code prohibit the use of non-codified law to determine culpability.

One particularly troubling amendment to the new code concerns article 287, which defines the crime ofefsad-e fel arz (“sowing corruption on earth”), punishable by death. Legislators have greatly expanded the definition of this crime, which was previously largely limited to prosecuting individuals alleged to be involved in armed resistance or terrorism against the state, to include an even broader set of ill-defined activities, such as “publish[ing] lies,” “operat[ing] or manag[ing] centers of corruption or prostitution,” or “damag[ing] the economy of the country” if these actions are deemed to “seriously disturb the public order and security of the nation.” Furthermore, because this crime is considered a “crime against God” for which shari’a law assigns fixed and specific punishments, judges (and even the Supreme Leader of the Islamic Republic) are, in contravention of international law, generally precluded from granting convicts pardons or commuting their sentences.

Under the current penal code authorities have executed at least 36 people since January 2010 on the charge of “enmity against God” or “sowing corruption on earth” for their alleged ties to armed or terrorist groups. At least 28 Kurdish prisoners are also known to be awaiting execution on various national security charges, including “enmity against God.” Human Rights Watch believes that in a number of these cases, Iran’s judicial authorities convicted, sentenced, and executed individuals simply because they were political dissidents, and not because they had committed terrorist acts.

The new penal provisions also fail to amend any of the overly broad or vaguely defined national security laws that severely punish individuals for exercising their right to freedom of expression, association, or assembly. Prosecutors and revolutionary courts systematically use these laws to target, harass, imprison, and silence critics and political dissidents.

Two other serious flaws in the new penal code provisions include the retention of punitive measures that amount to torture and cruel, degrading, or inhuman treatment of individuals convicted of crimes, including flogging, and the inclusion of discriminatory provisions against women and religious minorities related to the implementation of punishments, retribution and compensation, and use of evidence in court. Examples of discriminatory articles include differential treatment accorded to boys and girls in relation to the “age of maturity” and its consequences regarding criminal responsibility, and harsher punishments (including death) for non-Muslim defendants convicted of consensual same-sex relations.

An assessment of the new Iranian penal code provisions clearly suggests that the new penal code provisions approved by Iranian lawmakers fail to address serious human rights concerns regarding the administration of justice in Iran. In light of these failures, Human Rights Watch calls on the Iranian government to immediately suspend key provisions of the country’s penal code that violate the rights of criminal defendants, and to introduce new legislation in line with its international legal obligations.