Crimes against Children in Iran
Mohammad Mostafaei
Iranian Human Rights Lawyer
August 2012
Commissioned By:
Iran Human Rights Documentation Center
129 Church Street
Suite 304
New Haven, CT 06511
USA
Contents
Part I – Four Case Reviews.
Case No. 1 – Alireza Mullah Soltani, 17 years old.
Case No. 2 – Delara Darabi: Painter, Poet, and Pianist
Case No. 3 – Behnoud Shojaee.
Justice in the Iranian Judicial System.
Case No. 4 – Anders Behring Breivik.
Part II – Death Penalty against Children and Criminal Responsibility of Minors Prior to the Revolution
Part III – Death Penalty against Children and Criminal Responsibility of Minors after the Revolution
Age for Criminal responsibility According to Islamic Penal Codes (1996) and (2002):
1. Age for Criminal Responsibility, Penalties, and Alternative Disciplinary Measures for Children in the Previous Islamic Penal Code.
2- Age of Criminal Responsibility, Penalties, and Alternative Correctional and Educational Measures within the New Islamic Penal Code.
Part IV — Provisions of ‘No Capital Punishment for Children’ in International Laws and their Inclusion in the Body of Laws of the Islamic Republic of Iran.
PART V – Method of Reviewing Procedural and Substantive Elements of Juvenile Charges.
A) Reviewing Cases of Young Offenders Facing Execution by the General and Criminal Provincial Courts
B) Exclusion of Defense Attorneys from the Preliminary Investigation.
Part IV — Substantive Elements of Juvenile Charges.
Part I – Four Case Reviews
Case No. 1 – Alireza Mullah Soltani, 17 years old
On July 16, 2011, Alireza Mullah Soltani, a 17 year-old youth, along with two of his friends were driving home in a [Kia]-Pride automobile on Gulshahr Street in Karaj when a black Hyundai-Azera started tail-gating them and flashing headlights, indicating to Soltani and his friends to move faster. The driver of the Pride accelerates; however, some distance further the car has to slow down because speed-bumps on the road. The deceleration frustrates the Hyundai passengers and a verbal argument ensues between the passengers in the two cars. The Pride approaches Puneh Street; as it turns onto the street, one of the passengers in the Azera leans his upper body down to his waist out of the car window and strikes Alireza harshly on his hand. Both cars come to a halt and a fight breaks out between the passengers of the two cars. Someone named Rohullah Dadashi exits the car and severely slaps Alireza across the face, causing Alireza’s mouth to bleed. The man, who is large and strongly built, asks Alireza if he knows who he is. Alireza, shocked and terrified, thinks to himself that if he draws his pocket knife, his opponent will leave him alone and flee; however instead of his nemesis fleeing upon the sight of the weapon, a physical altercation ensues. Initially, Alireza cuts Rohullah’s hands twice—then, even though Alireza intends to leave the scene, the fight intensifies and his knife strikes Rohullah’s neck and throws him to the ground. Alireza flees the scene.
Following Rohullah’s death, much attention is drawn to the fact that Rohullah held the title of ‘Iran’s Strongest Man.’ As such, the case attracts prominence—all whilst Alireza—the alleged perpetrator—is at large. Alireza decides to escape to another city; he sets off for Ardebil. However, on the way, his conscience does not allow him to flee, so he returns and turns himself in.[1]
Subsequent to being arrested, Alireza is immediately interrogated, during which he is denied access to legal counsel. In a short period of time, an indictment is issued for Alireza and his case is forwarded to Branch One of the Criminal Court in the Province of Alborz for review by Justice Ranjbar and four other court advisors.
On 28 July, i.e., 11 days after the incident, the first hearing is convened with a panel of five judges presiding. The indictment is read out and the prosecutor asks for the maximum penalty, i.e., execution at the scene of the crime. The next-of-kin of the victim ask for Qisas [retribution]—or, in this case, death. The hearing commences at 11:17 A.M. and ends at 13:13 P.M. In other words, in two short hours—much of which was spent reading the indictment and hearing the evidence given by the witnesses—the proceedings were concluded. A court assigned defense lawyer, who was given hardly any time to review the case file and thereby provide an adequate defense, points out three issues. He indicates: 1) my client has no prior record; 2) the crime was a result of my client acting in self-defense—which is permitted under the law; 3) he is a minor. The defendant himself stated these facts in court and testified unequivocally that he did not intend to commit murder.
Due to external pressures because of the high profile nature of the case, the court summarily issues an execution order against Alireza on that same day. The verdict was communicated immediately to the accused and his lawyer. The lawyer, in turn, appeals the case, given the young age of his client and the fact that he acted in self-defense.
The Head of the Supreme Court forwards Ruhollah Dadashi’s murder case to Branch 11 of the Supreme Court. The branch Justices, notwithstanding the age of the accused and circumstances surrounding the case, uphold the verdict and immediately submit the decision to the Enforcement of Orders in Karaj judiciary for action.
In turn, the Karaj judiciary then immediately issues a statement announcing Alireza Mullah Soltani’s execution will be scheduled for September 21 and be implemented at the scene of the crime. The judiciary announces a publication ban of all forms, i.e., any form of photography or recording and their publication in the media.
On September 21, 2011 the “stage” is set for Alireza’s execution. A crane is brought to the site and—despite the judiciary’s ban—a special area is marked off for the press that gives a full view of the scene.
Alireza is brought to the site of the impending execution at 5:00 A.M.; at 5:30 A.M. he is put on the stool to be hanged. As he climbs onto the stool, Alireza cries and begs loudly for forgiveness. Alireza slips a few times before he manages to keep his balance on the stool.
Alireza was executed publicly on September 21, 2011 before a crowd of spectators who came to watch the hanging, and the event received wide media coverage.
Case No. 2 – Delara Darabi: Painter, Poet, and Pianist
On 7 January 2004, Delara Darabi and her boyfriend, Amirhossein Sotudeh, set out to rob the home of her father’s wealthy cousin, Mahin Darabi Haghighi. To their surprise and disappointment, Mahin was home. On that day, Mahin was murdered by multiple blows from a baseball bat and a number of stabs. The two youngsters leave with some gold and cash taken from the safe in the house. Subsequent to the release of the news concerning the murder, Delara tells her father that she was the killer. Delara’s father, a conscientious man, trusting that even if his daughter is the killer (as she claims to be) she would be dealt with as a minor, turns Delara in.
That very night, at 22:30 P.M., before the judge on duty at the scene of the crime, Delara confesses to manslaughter. In the course of the preliminary investigation, she states: “Amirhossein hit the old lady with a baseball bat from behind. He kept hitting her on her head and sides. He told me to bring a knife from the kitchen, which I did. Amir said slash, and I slashed”.[2]
The Coroner’s Office determines that the primary reason for death was tearing of the lungs and complications caused by the impact of a piercing and razor-sharp object. Delara’s case is then forwarded to Branch 10 of the Judiciary in Rasht where Delara pleads guilty to charges of first degree murder, robbery, and an unlawful relationship, before the judge.
On August 16, 2003 the crime scene is reconstructed. During the course of the investigations, Delara’s father realizes that what his daughter confessed to during the preliminary investigations in the case does not correspond to the facts of the case as demonstrated by the reconstruction. Accordingly, he asks a defense lawyer to interview Delara about her account of events. The lawyer meets Delara; he then goes to court and studies the file carefully only to find substantial inconsistencies in the evidence. The defense lawyer then returns to the prison to meet his client. Subsequent to speaking with Delara and presenting a number of inconsistencies in the file to her, the defense lawyer realizes that Delara accepted the charges in order to protect Amirhossein, and that in fact she lied and provided false confessions. She was under the impression that minors under 18 years of age would not be punished by execution in Iran, and if she accepted responsibility for the crime, she would protect Amirhossein from the death penalty, and she herself would not be executed.[3] After meeting with her lawyer and realizing that she faces execution, and seeing that Amirhossein is not coming forward to confess his responsibility, Delara tells the truth and declares that the real murderer is Amirhossein and she was merely the accessory to the crime.
Delara’s first court session commences on January 11, 2005, where Delara, assisted by her lawyer, rejects the charges of murder. However, the presiding judge, Justice Mohammad Hassan Javidnia sentences Delara to execution without considering her confession and minority age. The sentence was scheduled to be carried out a little more than just a month later, on February 26, 2005, under the provisions of Qisas. Meanwhile, the judge sentences Amirhossein Sotudeh as an accessory to the crime to 10 years imprisonment, with an additional 7 months incarceration for robbery and 63 lashes for an unlawful relationship.
Among the compelling evidence that proves Delara’s innocence is that Delara was left-handed, while all the evidence from the crime scene indicates that the murder was committed by a right-handed individual. Notwithstanding numerous objections and appeals for the stay of execution by various agencies, the verdict is endorsed and Delara’s statement of defense and submissions of her attorney on her behalf are not heard. Inconsistencies remain unresolved, and the judge dismisses the motion for a second reconstruction of the crime scene.
In the interim, the justice in charge of the file is appointed as the Prosecutor in Rasht. From the outset, this judge insists that Delara is the murderer. He did not allow Delara to testify in her own defense or her lawyer to make submissions on her behalf. On May 1, 2009, this judge covertly orders that the execution sentence against Delara be carried out.
Delara’s mother visits her one day before her execution. At that visit, Delara and her mother have uncertainties about what will follow the next day. Delara tells her mother again that she is innocent; she says one of the judges has promised to help her. The next day at 7:00 A.M. on a weekend, the phone rings at the Darabi household. Delara’s mother picks up the phone and hears Delara sobbing on the other end. Delara begs her mother for help and tells her that she will be executed shortly. She says that she sees the hangman’s rope. She begs her mother and father for help. The last thing she tells her mother is: “For God sake, help me…” at which time a guard takes the receiver and tells Delara’s mother: “We will kill Delara, and there is nothing you can do!” and hangs up. Delara’s mother and father go to prison that day and beg to see their daughter and have a chance to plea to the next-of-kin for the stay of execution. However, shortly after, the prison gate opens and an ambulance carrying Delara’s corpse emerges from the prison yard.
Case No. 3 – Behnoud Shojaee
On August 18, 2008, 17 year-old Behnoud Shojaee receives a phone call. Hesam, one of Behnoud’s close friends, tells Behnoud that a fight has broken out in Vanak Park and asks him to go there. Behnoud immediately makes his way to the park to try and stop the fight. When Behnoud arrives, the fight is already underway. Behnoud manages to break up the fight by separating the two parties. However, Ehsan, the person who is fighting with Behnoud’s friend, makes a profane remark about Behnoud’s late mother. Behnoud, who lost his mother as a child, flares up with rage. He takes a piece of broken glass from the ground, cuts Ehsan’s chest with the shard, and flees the scene. The paramedics take a long time to reach the scene of the incident and Ehsan dies from severe bleeding.
Behnoud reports himself to the police and criminal proceedings commence against him for manslaughter with intent. From the time of arrest until the end of the hearing, Behnoud repeatedly indicates that he only lacerated the victim once with a broken piece of glass, while the report of the Coroner’s Office shows the cause of death to be the impact of two piercing and razor-sharp objects. Throughout his trial, Behnoud did not have the benefit of a competent lawyer who could adequately defend him. When I accepted Behnoud’s case, he was scheduled to be executed in a week’s time, and all preparations for his execution had been made.
Behnoud was tried in Branch 74 of the Criminal Court in the Province of Tehran, and an execution order was issued for him that same day. Branch 33 of the Supreme Court further upheld Behnoud’s death penalty. There were numerous inconsistencies in Behnoud’s case. From the time I accepted his case, I tried my utmost to get a stay of execution. Behnoud was taken to the gallows six times, and each time I stopped the implementation of the sentence with a judicial order. However, eventually the judge and the court advisor in charge of enforcement insisted that the sentence be carried out. Once all judicial options were exhausted, I appealed to a number of well-known actors and filmmakers to make a plea to the victim’s family to forego retribution. To this end a special task force was formed.[4] The group ultimately succeeded in obtaining consent from Ehsan’s family. However, the consent was verbal and the family later changed its mind and opted for enforcement of the order. Many reasons were presented to the court pertaining to declaration of consent, [verbal or otherwise,] since according to Iranian law verbal consent is valid and binding. In this regard, I sought the views of many clerics who also confirmed the validity of verbal consent. Unfortunately, despite all these efforts, the court made an unwavering decision to execute Behnoud. Ultimately, at 5:30 A.M. on October 11, 2009, Behnoud was executed at the hands of Ehsan’s parents in the courtyard of Evin prison. Four to five hundred civil and political activists gathered at the scene of the execution to attempt to thwart the decision of the victim’s family and that of the judiciary, and stop Behnoud’s execution. Alas, no one succeeded and Behnoud was hanged. The case received wide international coverage; Amnesty International in collaboration with Guardian Productions created an animated short about Behnoud Shojaee’s execution.[5]
Justice in the Iranian Judicial System
The cases described above are real-life examples of the unjust practices of the Iranian judiciary. The absence of clear, thorough and comprehensive laws governing judicial proceedings coupled with ambiguous and perplexing laws concerning juvenile offenders and a general lack of attention to the rights of minors have resulted in what amounts to the commission of crimes against children during the governance of the Islamic Republic. The procedural and substantive elements of the issue will be discussed later in this commentary, but first it is appropriate here to give a brief account of a case in Norway—the country in which I now reside—in an effort to bring perspective on the differences between judicial proceedings in Iran versus that in countries that have abolished the death penalty, for minors and otherwise.
Case No. 4 – Anders Behring Breivik
On July 22, 2011, Andres Behring Breivik detonates a car bomb in front of the Office of the Prime Minister in central Oslo. In this bombing incident eight people are killed and colossal damage is done to surrounding buildings. Impersonating a police officer with an electronic weapon, Breivik proceeds to the island of Utøya near Oslo at a camp of the Workers’ Youth League (AUF) of the ruling party where young campers ranging from 14 to 17 years of age discussed political issues in an enjoyable summer camp setting. On the island, Breivik captures the children and commits mass murder. In this attack, Breivik kills 69 people. He is arrested for his heinous crime.
The people of Norway and the Norwegian government were infuriated with Breivik’s actions. He murdered 77 people in total, each one an important element in the future advancement of the country. Nonetheless, neither the government nor the people of this country wished to use violence to take revenge on Breivik, or disregard justice. In Norway, not only does the crime of murder not carry the death penalty, but its punishment is not even imprisonment for life. Unlike many other countries in the world, the punishment for murder in Norway is a maximum of 21 years of imprisonment. The policy adopted by the government of Norway does not concentrate on punishment as much as it focuses on the reason the offender committed the crime and rehabilitating the offender through the assistance of psychologists and other experts a policy believed to be most effective in crime prevention.
On July 25 & 27, 2011, three days after this heinous crime, about 150,000 residents of Oslo and surrounding cities surprised the world by gathering in the city Center, each with a single flower in hand as a show of symbolic resistance to Breivik’s heinous act of violence. The response of Norway’s people presented a stark contrast to similar episodes of recent memory in countries such as Pakistan, Afghanistan, and China, where hundreds of individuals have taken to the streets violently demanding the execution of murderers within their borders. But Norway responded otherwise and people reacted to the violence with stems of flowers instead.
From the beginning, Breivik’s trial was conducted transparently and his lawyers were present. At his trial, Breivik was afforded a full opportunity to defend himself. Notwithstanding the fact that Breivik confessed to the commission of the crimes, multiple court sessions were convened to examine the not-so-obscured facts of the crime from every possible aspect. Coroner’s experts assessed his mental health and two expert analyses were issued on the subject. The first evaluation determined that Breivik was psychotic, while the second finding, supported by facts and reasons, declared Breivik to be of sane mind. In the interest of justice, however, the court did its due diligence and obtained its own independent evaluation to determine whether Breivik could be held criminally responsible.
This case and the judicial response thereto offer a stark comparison between judicial approaches in different countries. On one side of the globe, a 17 year-old youth is summarily tried and is sentenced to death, with the execution carried out in haste; and on the other side of the globe, a 33 year-old man murders 77 innocent people, but the government and the people uphold justice and democracy above and beyond punishment and retribution.
Part II – Death Penalty against Children and Criminal Responsibility of Minors Prior to the Revolution
In the body of the Criminal Code of Iran prior to the revolution of 1979, i.e. in the General Penal Codes (1929) and (1973), laws calling for the execution of minors under 18 years old did not exist, and the Codes contained special provisions for young persons. Children between the ages of 12-18 were provided alternative forms of discipline and correctional measures. In other words, in 1929, Iran had a relatively advanced body of laws concerning children’s rights compared to those effective in other countries. Provisions were adopted and enforced before the advent of the International Charter of Human Rights, the International Convention on Civil and Political Rights [ICCPR], and so far as children were concerned, the ratification of the Convention on the Rights of the Child [CRC]. Many nations in the world at the time, including western countries, imposed the death penalty against children and it was rare to find laws similar to the General Penal Code pertaining to the rights of children in any other country.
Concerning young offenders from the ages of 12 to 18, Article 18 of the Formation of Young Offenders Court prescribed the following provisions:
1. Placement of the child in the care of a parent or guardian with the ability to provide effective supervision and appropriate discipline to ensure good behavior: the guardians—be it parents or educational institutions—were given specific responsibilities to ensure good behavior of the minors.
The important issue in this law in regards to children was that, by making the guardians responsible, the onus was on the adults to strive to provide appropriate discipline which, in turn, would result in behavioral changes and proper conduct.
2. Guidance and admonition by the Young Offenders’ Court Judge: Judges of young offenders’ courts were specially trained and possessed certain traits to be able to advise and caution young persons in a manner that would be effective and have an impact on the future behavior of the minor.
3.Placement of young offenders at correctional and educational facilities from 3 months up to 1 year: According to the General Penal Code, minors were held separate from adults. Facilities designated to young offenders were not referred to as ‘prison’ and young offenders were not called ‘prisoners.’
These measures resulted in children not feeling degraded, and instead afforded them the required mental and emotional support within an educational environment in an effort to address their challenges and mend their offending behavior.
4. Placement of young offenders at correctional and educational facilities: Children who had attained the age of 15, and had committed capital crimes were sentenced from 6 months to 5 years, and youth above 15 were sent to a specially designated ward within the correctional and educational facilities. Children who posed danger were also held in the latter ward.
The note to this article stated: “The above-noted decision is applicable in circumstances where the young person has committed a violent crime. If the penalty for the crime committed [for adults] is by execution or carries life imprisonment, the period of incarceration [for young offender] should not be less than two year.”
Furthermore, Section 2 of Article 33 of the General Penal Code (1973) concerning punishment for children 12-18 was amended as follows:
“Concerning young offenders older than 12 and up to the age of 18, the court is to adopt one of the following decisions:
a) Placing the minor in the care of either parent or guardian with recognizance to provide effective supervision and appropriate discipline to ensure good behavior;
b) Guidance and admonition by the [Young Offenders] Court Judge;
c) Incarceration at a correctional and educational facility from 3 months up to 1 year;
d) Incarceration at a correctional and educational facility from 6 months up to 5 years, if the minor is over 15 and the crime committed is of serious nature; and 2 to 8 years, if the penalty for the crime [for adults] is by execution or carries life imprisonment—in which case incarceration of minor should be no less than 2 years.
Therefore, with the ratification of the General Penal Code in 1973, the period of incarceration for young offenders who had attained the age of 15, and who had engaged in a capital crime, was further defined, and the maximum penalty in cases where the crime carried execution or life imprisonment [for adults] was extended.
In summary, the laws of Iran in regards of children prior to the Islamic Republic revolution were one of the most advanced laws in comparison to those in other countries, and under no circumstances young offenders were executed or sentenced to life imprisonment. Even today if we were to randomly ask any elder about execution of minors, they would say that under the laws of Iran minors under 18 are not executed, and they would indeed be shocked if told that in fact the death penalty against young persons exist in their country.
The above-noted laws, however, underwent drastic changes after the Islamic revolution; changes that not only were detrimental to the rights of the minors, but also to the community, and more importantly to the Iranian nation and its rich ancient culture and civilization dating back 2,500 years. A nation that was once the harbinger of the first Charter of Human Rights known as the Cyrus Cylinder named after King Cyrus.
After the revolution, the laws concerning children were transformed to such inhumane and hostile laws that raised the objection of many adjudicators and judicial authorities, who strived to amend these provisions and safeguard the interest of young persons and the community. Drawn from protective laws prior to the revolution, in 2004, these individuals presented a bill entitled ‘Bill of Review of Young Offenders Act’ to the Islamic Consultative Assembly. Even though this bill was never ratified, some of its provisions were included in the recently adopted code by the Islamic Consultative Assembly.
With the adoption of Articles 32 and 33 of this bill concerning judicial decisions regarding children under the age of 18, some improvement was made. Articles 32 and 33 of the bill stipulate:
Article 32: Concerning young offenders over the age of 9, and up to those who have attained 15 years of age (solar calendar), the court will adopt, best suited to the facts of the case, one of the following provisions:
a) Placement of the child in the care of a surety—parent or legal guardian—with a recognizance to provide effective supervision and appropriate discipline to ensure good behavior of the young person. The court has the discretion, based on the facts of the case, to impose certain conditions and order the surety to report to the court, within a specified period, as it may deem appropriate:
- Referral of the minor to a social worker, psychologist, and/or other professionals, and to comply with their recommendations as required;
- Enrollment of the minor in an educational or cultural institution for academic studies or to learn a trade;
- Referral of the minor to a specialist for treatment of any drug dependencies, as required;
- Condition of no contact against the minor with individuals determined by the court to be harmful;
- Restriction imposed by the court against the minor to be in specific places.
b) Placement of the minor in the care of a third person or a legal entity, as the court may deem appropriate, with a requirement to comply with the above-noted instructions, under the following circumstances:
- Where parents or legal guardians are determined unfit or are inaccessible;
- Where parents or legal guardians are unable to provide effective supervision and appropriate discipline to ensure good behavior of the young person;
c) Admonition and guidance provided by the [Young Offenders] Court Judge;
d) Warning, caution and recognizance (in writing) to not reoffend;
e) Placement in a correctional and educational facility from 3 months up to one year. This provision applies to offenses that by law carry an incarceration period of 3 years or more.
Note 1- Provisions noted in paragraphs (d) and (e) are strictly applicable to minors 12-15 years of age.
Note 2- Provisions noted in paragraphs (a) and (b) allows the Young Offenders Court to review its decision as many times as required in light of updated information and reports of social workers submitted to the court in regards of the minor and his/her behavior.
Article 33: In regards to young persons over 15, and up to those who have attained 18 years of age (solar calendar), the following sentences will apply:
1. Placement in a correctional and educational facility up to one year, and/or payment of fine up to 1,000,000,000 rials, and/or community service for a period of one year—in light of the notes of this article. This provision applies to offenses that by law carry an incarceration period not exceeding 3 years, or penalties other than incarceration.
2.Placement in a correctional and educational facility from 6 months up to three years, in regards of offenses that by law carry a sentence of incarceration exceeding 3 years [for adults].
3.Placement in a correctional and educational facility from 2-8 years, in regards to offenses that by law carry a sentence of life imprisonment, or execution [for adults].
Note 1- Where appropriate—considering the age, emotional state and particular circumstances of the accused, and in proportion to the offense—the court has the discretion to order, with the willingness of the accused, and in lieu of period of incarceration or payment of fine (as noted in paragraph 1 of this article), hours of community service such as: learning a trade; work in Centers for the disabled or elderly; janitorial and/or irrigation projects for green spaces, such as public parks and recreational facilities, in proportion to the severity of the offense. Hours of service, to be performed under the supervision of the social worker, should not exceed 8 hours per day for persons unemployed, and 4 hours per day for persons with employment. Total number of community service hours set as a sentence should not exceed 240 hours.
Note 2- Where the accused, without notice and/or reasonable excuse, discontinue his/her community service, the court has the discretion—in consultation with the prosecutor’s office, and based on the report of the social worker—to increase the number of community service hours up to one forth, for the first time, and in the event of a second breach, to change the service or substitute the penalty to a different form (as per paragraph 1).
Note 3- Considering particular circumstances of the accused and the nature of the offense, the court has the discretion to impose a period of house arrest, in lieu of incarceration and/or payment of a fine (as per paragraph 1), as it may deem appropriate, or place the offender in a correctional and educational facility on weekends for two days for a specified period of time.
As noted, this bill recommends incarceration for a period of 2-8 years in correctional and educational facilities for charges that carry a sentence of life imprisonment, or execution for adults.
Part III – Death Penalty against Children and Criminal Responsibility of Minors after the Revolution
In the preamble to the Constitution of the Islamic Republic of Iran, under the heading ‘The Judiciary of the Constitution,’ it is stated: “The question of the judiciary in relation to safeguarding the people’s rights along the line adopted by the Islamic movement with the object of preventing localized deviation within the Islamic community is a vital one. Thus provision must be made for the establishment of a judicial system on the basis of Islamic justice, manned by just judges, well acquainted with the exact rules of the Islamic code…” Furthermore, Article 156 of the Constitution states: “The judiciary is an independent power, the protector of the rights of the individual and society, responsible for the implementation of justice…” As such, the premise is that the judicial authorities in the Islamic Republic of Iran must dedicate themselves to justice and issue verdicts in fairness and justice in accordance with the laws and regulations.
At the early stages of the Islamic revolution, the presumption was that by Islamification of the laws and the appointment of those who were supposedly of staunch religious beliefs and well-acquainted with religious precepts and Islamic justice, true justice would be attained. Regrettably, not only was that an illusion, but those same individuals who carried the banner of justice committed cruel offenses against Iranian citizens including mass executions and torture. Scrutiny and analysis of details of crimes committed by the authorities of the Islamic Republic warrants a document of its own and cannot be discussed here; however, some human rights organizations have, throughout the years, published reliable documents and accounts of these alleged crimes for public use.[6]
The age of criminal responsibility is one of the most challenging issues in both judicial and religious laws with respect to the rights of children. Before we begin the discussion on the issue, however, it is necessary to review the crimes for which lawmakers have prescribed the death penalty for. What is noted here is based on the Islamic Penal Code, adopted in 1996 by the Islamic Consultative Assembly. Recent changes adopted in 2012 are noted in parenthesis.
In the entire body of the Criminal Codes of the Islamic Republic of Iran, ratified by the Majlis, the following capital offenses carry the death penalty:
1- Stoning for Zina-yi Muhseneh [sexual intercourse between a married man and a woman outside their own marriage] pursuant to Article 83 of the Islamic Penal Code. (In the recently adopted Islamic Penal Code there is no mention of stoning. However, Article 220 of Code states: “Subject to [the provisions of] Hudúd [limits][Sing. Hadd], where no reference is found in the Code, Article 167 of the Constitution applies.” Article 167 of the Constitution states: “The judge is bound to endeavor to judge each case on the basis of the codified law. In case of the absence of any such law, he has to deliver his judgment on the basis of authoritative Islamic sources and authentic fatwa. He, on the pretext of the silence of or deficiency of law in the matter, or its brevity or contradictory nature, cannot refrain from admitting and examining cases and delivering his judgment.”) Accordingly, the prescription of stoning for Zina-yi Muhseneh is indeed still in effect, inasmuch as the judicial authorities are given the discretion to impose penalties prescribed by the Islamic Shari’a law, such as stoning for Zina [adultery] under the provisions of Hadd.
2- Execution for adultery with one’s consanguineous relative, a step-mother, a non-Muslim man with a Muslim woman, where the adulterer is murdered. Adultery by Unf [forcible means] or Ikrah [under duress], resulting in the death of the adulterer, as per Article 82 of the said Code. (In the recently adopted Islamic Penal code the above-noted provision is cited in Article 225, and remains unchanged.)
3- Execution for Lavat [sodomy] (by insertion) as per Article 110 of the said Code: (In the recently adopted Code execution for consensual Lavat has been omitted and replaced by flogging a hundred times.) Article 232 of the Penal Code prescribes punishment by execution for sodomy by Unf, Ikrah, or Ihsan [if married], subject to Hadd, for the active party, otherwise flogging a hundred times. The penalty for the passive party is by execution, regardless of circumstances. In other words, if two homosexual men engage in the act of sodomy, the active party—subject to Hadd—is punished by 100 lashes and the passive party is sentenced to death.
4- Execution for Muharebeh [waging war] and Afsad-i fil Arz [corruption on earth] as per Article 190 of the said Code: Muhareb and Mufsid-i fil Arz are defined as persons drawing weapons with intent to threaten or cause fear and security risk in society. (In the recently adopted Code, punishments for Muharebeh and Afsad-i fil Arz have been referred to separately. Article 284 of the said Code is dedicated to Baghi [armed rebellion], and Afsad-i fil Arz and has been substantially revised which in fact widely extends the punishment of execution. This article states:
“Whosoever engages extensively in:
– commission of widespread crime against masses;
– crimes against homeland or external security;
– spreading rumors and/or uttering slander;
– financial malfeasance in the affairs of the State;
– spreading hazardous and poisonous substances;
– establishing brothels or involvement in their operation, causing extensive disturbance in public order;
– causing security risks or inflicting substantial physical harm to individuals or damage to public or private properties;
– widespread moral corruption and offenses;
is subject to punishment by execution.
Article 285 describes Baghi as a group that rebels against the foundations of the Islamic Republic of Iran, and where weapons are used, group members are subject to punishment by execution.
5- Execution for first degree murder: Article 206 of the Code defines murderer as a person who engages in an act with intent to kill certain or random person(s), and where the killer intentionally engages in an act that would by nature result in the death of a person, albeit in absence of intent.
6- Execution for adultery: if repeated for the fourth time, and after three times flogging under Hadd. (This punishment has been omitted in the recently adopted Code.)
7- Execution for narcotic drug related offenses as set out in the law. (In the recently adopted Code, execution for minors for narcotic drug related offenses, subject to the provisions of Ta`zir [discretionary punishments], has been omitted.)
8- Execution for robbery, if repeated for the fourth time, and after three times punishment under Hadd. Article 210 of the Islamic Penal Code pertaining to robbery states:
a) On the first offense: dismemberment of four fingers of the right hand so as to leave only the thumb and the palm of the hand of the robber;
b) On the second offense: dismemberment of the left leg of the robber, from below the buttocks, so as to leave part of the upper portion of the leg;
c) On the third offense: imprisonment for life;
d) On the fourth offense: execution (even if the robbery is committed in prison)
(The above noted provisions remain unchanged in Article 276 of the recently adopted Code.)
Age for Criminal responsibility According to Islamic Penal Codes (1996) and (2002):
- 1. Age for Criminal Responsibility, Penalties, and Alternative Disciplinary Measures for Children in the Previous Islamic Penal Code
According to Article 49 of the Islamic Penal Code (1996), children who commit an offense are not criminally responsible, and it is the responsibility of the court to guarantee their education and discipline by placing them in the care of a parent or guardian, or a correctional and educational facility. However, this provision of the law does not define the age of criminal responsibility, and the only reference, which is at best vague and ambiguous, is found in note 1 of the said article defining the term ‘minor.’ Note 1 of Article 49 states: “Minor is a person who has not reached the age of maturity as determined by Shari’a.” However, there is no reference anywhere in the body of the judicial laws to ‘specified age’ as it relates to criminal responsibility of a person. Rather, authorities adjudicating criminal affairs cited to the civil code.
The note of Article 1210 of the Civil Code determines the age of maturity for girls as 9 Lunar years, and for boys as 15 Lunar years.
Relying on this provision cited in the Civil Code—not the Criminal Code—therefore, judicial authorities determined that girls who had attained 9 Lunar years, and boys who had attained 15 Lunar years, are criminally responsible for the offenses they were convicted of, and thus sentenced them as adults. In other words, if a 10 year-old girl or a 15 year-old boy commit first degree murder – or for that matter were in possession of a narcotic substance – and once convicted, the offenders are subject to execution, at the request of the victim’s next-of-kin (in murder cases), based on provisions of Qisas [retribution].
What is noteworthy, however, is that according to the Civil law, individuals who are not of mature mind cannot take possession of their wealth or property, and cannot engage in trade, until they reach the age of 18. In other words, when a person reaches the age of maturity, in civil matters, s/he must prove to the court that s/he is of mature and sane mind, and capable of making sound financial decisions, in order to take possession of his/her wealth or property. If the person is over the age of 18, there is no requirement to prove maturity to the court. Moreover, persons under the age of 18 cannot be issued a driver license, cannot vote or be dispatched for military service. However, as previously mentioned, if such a person commits a crime, s/he would be punished as an adult. Contradictions within the Islamic Penal Code caused by the adoption of the ‘age of maturity according to Shari’a’ as the age of criminal responsibility for children, and the differences in opinion among the religious scholars in respect to the ‘age of maturity,’ and the Civil Code which determines maturity for girls as 9 Lunar years, and boys as 15 Lunar years, create diverging views and notable inconsistencies in judicial rulings. One such case was that of Saber Sharbati, a young person who committed first degree murder at the age of 15. [In a panel of five judges] at the Provincial Criminal Court, three ruled for his execution in reliance on the note of Article 1210, while the other two judges considered him ‘not of mature mind,’ and ruled against sentencing him to death. With the confirmation of the Supreme Court, the case was sent for review to the Head of the Judiciary where special advisors endorsed the reasoning of the judges in minority, and Mr. Shahroudi, the Head of Judiciary at the time, ruled that the case of this young man condemned to death would be reviewed in a de novo hearing.
The judges who ruled in the minority, in addition to considering interviews and commentaries written by those against the execution of children, submitted factual and legal reasoning of an unprecedented extent in the Iranian judicial system. Their opinions at that juncture brought more attention to crimes against children. It also demonstrated that if judges were familiar with the temperaments of children and their worldview, they would make decisions more favorable to children and the community.
The reasons brought by the judges in minority against the decision to execute Saber Sharbati were as follows:
1- At the time of commission of the crime, the accused was 15 years and four months;
2- Article 49 of the Islamic Penal Code states: “Children who commit an offense are not criminally responsible, and it is the responsibility of the court to guarantee their education and discipline by placing them in the care of a parent or guardian, or a correctional and educational facility.” Note of the said article states: “Child is a person who has not reached the age of maturity according to the Shari’a.” However, in the body of the Islamic Penal Code, or other Criminal Codes, no reference can be found to the ‘age of maturity’ for criminal responsibility. The only reference is in the Civil Code in Article 1210 where it determines the age of maturity for girls as 9 Lunar years, and boys as 15 Lunar years. Therefore, the adoption of age of maturity as indicated in the Civil Code as opposed to Article 49 of the Islamic Penal Code—which in fact pertains to criminal matters—is questionable, even though sadly in the past few years this view has been commonly adopted by the judiciary. The question is, however, that if the lawmaker, with respect to criminal matters, intended to clearly specify the age of criminal responsibility, he would have included it in one of the many draft revisions of the Islamic Penal Code, but he did not.
3- The age of maturity cited in the note of Article 1210 of the Civil Code is merely a gage for determining maturity, inasmuch as ‘maturity’ according to religious sources has a specific meaning and specific signs/markers. These markers sometimes appear in girls and boys earlier than 9 and sometimes later than 15 and depend largely on geographical, environmental, and educational [factors], as well as a variety of other factors. As such, the age of maturity can never be predetermined for girls to be the attainment of 9 Lunar years and boys exactly at the attainment of 15 Lunar years, inasmuch as what is determined in Article 1210 of the Civil Code is merely an indication, which, in uncertain cases, would require further investigation and assessment.
4- Undoubtedly there is consensus between the Ulama [learned religious men] and jurists that a child should not be punished. But if an adult is found guilty of a crime, s/he must be penalized. However, the difference of opinion is the line between childhood and maturity, and whether or not there is a correlation between ‘age’ and ‘maturity of mind’ in criminal matters. In other words, does age necessarily guarantee maturity of mind? In this regard, the majority of experts are of the opinion that there is no correlation necessarily between ‘age’ and ‘maturity of mind,’ and that physical age of maturity is a natural physical development for sexual readiness for marriage, and not necessarily related to maturity of mind, inasmuch attainment of ‘age’ does not automatically guarantee ‘maturity of mind.’ Human beings evolve gradually. After childhood, the person reaches sexual maturity, and then (after sexual and physical maturity) reaches maturity of mind, i.e., to have the ability to distinguish between good and evil, right and wrong, proper and improper action, consequence of action, etc. As such, to impose harsh and irreversible penalties such as taking the person’s life is a drastic and unreasonable measure. Therefore, making such judgments require in-depth analysis, and in case there is doubt the principle of Dar’ [prevention] “where there is doubt in Hudud, the presumption of innocence must be relied upon” will apply.
5- With reference to Quran and other Shari’a sources, the lawmaker stresses the guarantee of a mature mind in respect to financial responsibility. Note 2 of the Article 1210 of the Civil Code states: “Wealth and property of a minor who has reached the age of maturity can be transferred to him/her once his/her maturity of mind is established.” As such, the lawmaker has distinguished between the ‘age of maturity,’ and the ‘maturity of mind,’ and requires the establishment of the maturity of mind regardless of age in respect to financial matters. The lawmaker, in agreement with Shari’a, also makes the requirement of full 15 Lunar years applicable to various other laws such as the ‘involvement in social, political and financial affairs,’ inasmuch as it determines a person of 15 or younger is not fully capable of understanding political, social and financial issues. How is it then that the lawmaker considers a boy of 15 to not be mature on matters that are less grave than the assignment of criminal responsibility, but considers him mature and responsible in respect to criminal issues?
6- Article 33 of the bill of the Formation of Young Offenders Court, in respect to offenses punishable under the provisions of Qisa or Hadd, states: “Where there is doubt in maturity of mind, the court must rely on paragraph 2 and 3 of Article 31 of this Code for sentencing.” The note of the said article stipulates that the court can avail itself of expert opinions of the coroner’s office, or any other means as it may deem fit to assess the young offender’s maturity of mind. Although this bill did not pass the final stage of approval, and was not adopted as binding law, the fact that the bill was drafted and reviewed in the Majlis, and the members of the parliament that provided the means for its review, is in itself indicative that some authorities are of the opinion that severe and irreversible punishments such as execution require the offender to have been of mature and fully developed mind, and that maturity due to age alone is not sufficient grounds for enforcement of such harsh penalties.
7- A number of eminent Shi’a figures and religious scholars have also offered their views on the issue. Ayatollah Makarem Shirazi issued a fatwa in which he stated: “Maturity for boys is attainment of 15 Lunar years, and for girls attainment of 9 Lunar years, however, maturity according to Shari’a has several stages: 1) Maturity with respect to religious principles and observance of the laws of Vajeb [essential], Haram [forbidden], etc.; 2) Maturity for readiness for fasting, so long as it is not harmful; 3) Maturity for readiness for marriage, so long as girls are physically able to engage in a marital relationship without causing them physical damage; 4) Maturity for financial and penal issues which necessitates maturity of the mind.
Furthermore, in respect to criminal responsibility concerning young persons, it is necessary that the degree of maturity of mind be evaluated, and if there is doubt, with regards to offenses under the provision of Hudud and Qisas, the principle of Dar’ must apply. Concerning secondary issues, if the evaluation is true and accurate, for persons above the age of maturity yet under 18, the Shari’a judge shall determine if he can substitute the penalty for a lesser one, in consideration of what might be harmful to the image of Islam.
On the same subject, Ayatollah Noori Hamedani states: “Age of maturity for boys is the attainment of 15 years and for girls the attainment of 9 [years]. However, the Islamic government, mindful of the best interest of Islam and Moslems, can adopt provisions and legislate laws, in consideration of maturity and the best interest of the community. Moreover, in response to whether or not religious judges should, in consideration of what might harm the image of Islam, impose lesser penalties, he stated that “carefully and in consideration of the best interest, [the judge] could.”
Such fatwas further confirm that even eminent religious figures in some cases, and where maturity of mind is in question, do not approve of enforcement of harsh penalties and opt for the stay of such penalties. Undoubtedly, such fatwas are issued based on solid Shari’a criteria. As such, considering that the Islamic Penal Code only makes reference to the age of the offender at the time of commission of the offence, and that based on some Quranic verses and hadith, and fatwas issued by prominent religious figures concerning ‘maturity,’ and that maturity is not only physical and sexual, but also includes ‘maturity of mind,’ i.e., the ability to distinguish good and bad and realize the consequence of one’s action, and in light of Article 49 which determines that where there is doubt in maturity, the principle of Dar’ should apply, issuance of harsh and irreversible penalties for offenders who were 15 or so at the time of committal is not sensible and appropriate. In such circumstances, it is best to refer the accused to a board of physicians at the Coroner’s Office for observation and assessment over a period of time so that based on their recommendations a substantive decision can be made.
However, issuance of such referrals is rare within the judicial system of the Islamic Republic of Iran, inasmuch as there are a handful of judicial authorities who have knowledge of child psychology and child behavior, and who impose penalties with consideration given to the best interests of the child. That said, unfortunately, and owing to a lack of due process, even with respect to children, Branch 74 of the Provincial Criminal Court, headed by Justice Hassan Tardast, the sound and legitimate reasoning of the judges in minority were not accepted and, ultimately, Saber Sharbati was sentenced to death. At the moment, Saber Sharbati is in prison in Rajai Shahr in Karaj spending his days in fear of execution.
2- Age of Criminal Responsibility, Penalties, and Alternative Correctional and Educational Measures within the New Islamic Penal Code
Article 145 of the recently adopted Islamic Penal Code states: “Individuals who have not attained maturity are not criminally responsible.” Subsequent to this article, and contrary to previous laws that determined the age of maturity based on Shari’a, Article 146 of the Islamic Penal Code determines the age of maturity for girls and boys as a full 9 and 15 Lunar years respectively. Stipulating the age in the recently adopted Islamic Penal Code suggests that judges in the past did not have the right to enforce judgments based on the said ages, and thus indicates that judicial rulings imposed on minors in the past had no judicial validity. That said, the stipulation of age in the new Code and the conditions put in place in respect to the imposition of penalties against children is somewhat favorable towards minors. That is to say, imposing severe and excessive penalties bereft of fairness and compassion against children has been limited to some extent.
Consequently, all judges who, in previous years, sentenced minors to execution based on penalties intended by the lawmaker for adults have arguably made wrongful rulings without legal validation. As a result of these erroneous judicial practices, these judges may have committed offenses under international laws—which deserve full analysis in a separate commentary. A judge can only issue a verdict based on the law, and any deviation thereof is unlawful or an act of crime. Age of maturity according to Shari’a law is not explicitly clear, and this ambiguity in the law would have required the judges to make a ‘non-prejudicial interpretation’ in favor of the accused, in these cases, the minors. On the other hand, Iran cannot claim that laws pertaining to the execution of minors have been in any way ambiguous, nor obfuscated, inasmuch as Iran is signatory to the Convention on the Rights of the Child since 1993, albeit adopting it conditionally. Article 37 of the said Convention declares that no child below eighteen years of age shall be subject to life imprisonment or capital punishment, and the Guardian Council has made no issue of this article’s incompatibility with the Shari’a law.
Sadly, however, in previous years many children were unjustly executed in contravention of international laws. Furthermore, these crimes were committed against the most vulnerable section of society, i.e., children, whose rights must be considered a priority.
Chapter 10 of the new Islamic Penal Code pertains to penalties, and alternative correctional and educational measures, for children and youth. Article 87 of this Code states:
In respect to children and youth who commit an offense subject to Ta`zir, and who, at the time of commission [of the offense] had attained 9-15 Solar years, the court is to decide on one of the following alternatives:
a) Placement of the minor in the care of a parent or guardian with the acknowledgment that they will provide effective supervision and appropriate discipline to ensure good behavior;
Note: The court has the discretion, based on the facts of the case, to impose certain conditions and order individuals to any of the following and report the results to the court, within a specified period:
1- Referral of the minor to a social worker, psychologist, and/or other professionals to comply with their recommendations as required;
2- Enrollment of the minor in an educational or cultural institution for academic studies or to learn a trade;
3- Referral of the minor to a specialist for treatment of any drug dependencies, as required;
4- Condition of no contact against the minor with individuals determined by the court to be harmful;
5- Restriction imposed by the court against the minor to be in a specified place.
b) Placement of the minor in the care of a third person or a legal entity, as the court may deem appropriate, with a requirement to comply with the instructions noted in paragraph (a), where parents or legal guardians are determined unfit, or are inaccessible, in consideration of Article 1173 of the Civil Code;
Note: placement of the minor in the care of the qualified individual is subject to his/her agreement.
c) Admonition provided by the Judge;
d) Warning, caution and a written acknowledgment to not reoffend;
e) Placement in a correctional and educational facility from 3 months up to one year, in respect of an offense under the law of Ta`zir, level of severity 1-5.
Note 1- Provisions noted in paragraphs (d) and (e) are strictly applicable to minors 12-15 years of age. The provision noted in paragraph (e) is mandatory in respect to minors who have committed an offense under the law of Ta`zir, level of severity 1-5;
Note 2- Where a minor of not mature mind commits an offense under the provisions of Hadd and Qisas, in the event that the offender is 12-15 Lunar years of age, s/he will be subject to paragraph (d) or (e); otherwise, the provisions noted in paragraph (a) to (c) will apply;
Note 3- The provisions noted in paragraphs (a) and (b) allow the Young Offenders Court to review its decision as many times as required, in the best interest of the minor, and in light of updated information and reports of the social workers submitted to the court in regards to the minor and his/her behavior.
In respect to youth who commit an offense subject to Ta`zir, and who, at the time of commission [of the offense] had attained 15-18 Solar years, the following penalties apply:
a) Placement in a correctional and educational facility from 2-5 years, in respect to offenses that are subject to the law of Ta`zir¸ are level 1-3;
b) Placement in a correctional and educational facility from 1-3 years, in respect to offenses that are subject to the law of Ta`zir, are level 4;
c) Placement in a correctional and educational facility from 3 months up to 1 year, or a payment of a fine in the amount of 10,000,000 to 40,000,000 rials, or performing 180 to 720 hours of volunteer service in the community in respect to offenses that are subject to the law of Ta`zir, are level 5;
d) Payment of a fine in the amount of 1,000,000 to 10,000,000 rials, or performing up to 180 hours of volunteer service in the community in respect to offenses that are subject to the law of Ta`zir¸ are level 6;
e) Payment of a fine up to 1,000,000 rials in respect to offenses that are subject to the law of Ta`zir, are level 7-8.
Note 1- Hours of community service should not exceed 4 hours a day;
Note 2- Considering the particular circumstances of the accused and the nature of the offense, the court has the discretion to impose a period of house arrest, in lieu of incarceration and/or payment of a fine, as per paragraph (a) to (c) of this article, as it may deem appropriate, or to place the offender in a correctional and educational facility on the weekends for two days for a period of 3 months up to 5 years.
An added advantage that the lawmaker has specified for children under such circumstances is that it has given the court the discretion to reconsider its verdict once in light of further reports concerning the minor, and his/her behavior in the correctional and educational facility, and upon such reconsideration lessen the period of incarceration by one third, or change the order of incarceration to place the minor in the care of a parent or guardian. This court could only reconsider the sentence if the minor has already served at least one fifth of the original sentence in the correctional and educational facility. The revised court order is final and binding. This provision does not prohibit the ruling of conditional release and/or other substitute sentences, if conditions are met. (Article 89 of the new Penal Code)
Concerning the execution of young offenders below the age of 18, the new Islamic Penal Code states: “In respect to offenses under Hadd and Qisas, where persons below the age of 18 who have reached the age of maturity fail to understand and comprehend the nature of the committed offense, or not have a full appreciation thereof, or where there is doubt in their mental capacity and development, depending on the specifics of each case, and in consideration of the offender’s age, s/he would be sentenced to penalties specified in this chapter.”
The note to this article indicates: “The court is given the discretion to avail itself of the views of the Coroner’s Office, or obtain any other expert opinion, as deems fit.”
Notwithstanding the fact that the lawmaker, for the first time since the revolution, adopted laws somewhat to the advantage of children, enforcement of execution concerning offenses under Hudud and Qisas are still in effect by law, inasmuch as it has made it pending on conditions, such as failure to understand and comprehend the nature of the committed offense, or not have a full appreciation thereof, or where there is doubt in their mental capacity and development. The three mentioned conditions are at best relative, and their existence in the Code, due to their vagueness and ambiguity, is not to the best interest of the child, inasmuch as, noted in the following lines, 1) judges reviewing the cases of minors are not special young offenders’ judges; 2) views of the judges with respect to the conditions noted above are relative and arbitrary, i.e., a child could be considered by one judge to have full mental development, and, by another, not have full maturity of mind. As such, the first judge might sentence him/her to Qisas, while the second judge might acquit him/her.
Part IV — Provisions of ‘No Capital Punishment for Children’ in International Laws and their Inclusion in the Body of Laws of the Islamic Republic of Iran
‘Right to life’ is one of the most fundamental rights stressed upon in international instruments such as the International Covenant on Civil and Political Rights and conventions ratified by human rights organizations, and in the event that a State Party carries out executions, contrary to these treaties, the international community condemns the act and reserves the right to seek a modified punishment, or the omission of the death penalty from the laws of that State Party.
In respect to punishment for children under 18 who commit crimes that by law carry the death penalty for adults, for the reasons that minors:
– are easily influenced by their environment and those around them;
– at times might take the responsibility of an offense committed by another—such as in the case of Mohammad Reza Haddadi;
– are unable to bear the fear and the physical and emotional pressures of interrogations and thus easily confess to crimes they have not committed;
– are not involved in organized crimes;
– are unaware of their basic rights; and
– are not mentally and intellectually fully developed;
Countries decided to omit punishments of execution and life imprisonment from their laws, and instead adopt laws by which [young] offenders could return to the community through correctional and educational measures. For these reasons, in the two important international agreements, i.e., the ICCPR, and the CRC, the right to life and abolishment of the death penalty in respect to young offenders below the age of 18 were adopted and endorsed.
Paragraph 5 of Article 6 of the ICCPR states that sentence of death shall not be imposed for crimes committed by persons below 18 years of age.
The covenant was introduced by the UN General Assembly on 16 December 1966, through resolution number 22008, and was open for the signature and adoption of States. On 23 March 1976, the 35th instrument of accession was deposited, which, after three months, according to Article 49, became compulsory and binding.
Iran adopted the Covenant unconditionally, and the treaty was ratified by both houses of parliaments in 1975.
Article 37 of the CRC states explicitly: “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below 18 years of age.”
The Convention on the Rights of the Child was ratified by the UN General Assembly, subsequent to the adoption of the declaration of the rights of the child in 1959 with the aim of granting executive and legal powers to the rights of the minors and became binding from September 2, 1990
In March 1994, with ratification of the Islamic Consultative Assembly and endorsement of the Guardian Council, the government of the Islamic Republic of Iran implemented the Convention with the condition that where there is incompatibility between tenets of the convention and the State law and/or Islamic criteria, the State would have the right to opt out of that provision.
Notwithstanding the inherent problem with the conditional acceptance of the Convention—which would require an independent commentary and analysis, a judgment on the compatibility of provisions adopted by the Islamic Consultative Assembly and Islamic criteria was given to the Guardian Council. The Guardian Council, a [12 member] consultative assembly comprised of six faghihs [experts in Islamic jurisprudence] and six experts in [State] law, reviewed the Convention in February of the same year in order to determine its compatibility, or lack thereof, with the Constitution and the Shari’a law. Pursuant to Article 96 of the Constitution, the determination of compatibility of the legislation [passed by the Islamic Consultative Assembly] with the laws of Islam rests with the majority vote of the faghihs on the Guardian Council; and the determination of its compatibility with the Constitution rests with the majority of all the members of the Guardian Council. On January 24, 1994, the Guardian Council convened a meeting and thus submitted bill number 5760 to the Islamic Consultative Assembly, in which it stated:
“You have accepted wholly the provisions of this Convention. However, it is possible that in the future you might declare some of the provisions incompatible with the Shari’a law and thus reject them, so with respect to those provisions, we must be told explicitly which provisions are not accepted by us….”
It is for the above reason that the Guardian Council declared in its statement that: “Paragraph 1 of Article 12; paragraphs 1 and 2 of Article 13; paragraphs 1 and 3 of Article 14; paragraph 2 of Article 15; paragraph 1 of Article 16; and paragraph 1-d of Article 29 are deemed incompatible with the Shari’a law.”
Therefore, if any provisions of the CRC were not deemed incompatible with the Shari’a law, they have legal force. Article 37 of the Convention explicitly states: “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age.” Were we to review the statement of the Guardian Council, we would find that the above-quoted article is not deemed incompatible with the Shari’a law by the Council, which would mean that the Council considered Article 37 of the Convention legally binding. This provision, which has been ignored by the judicial authorities, demonstrates that courts have no right to issue execution orders for children.
PART V – Method of Reviewing Procedural and Substantive Elements of Juvenile Charges
A) Reviewing Cases of Young Offenders Facing Execution by the General and Criminal Provincial Courts
The note of Article 220 of the Criminal Hearing Procedure Act (1999) clearly states the importance of reviewing cases of minors under the age of 18 from the beginning to the end by the Young Offenders Courts. In 2002, the Islamic Consultative Assembly ratified a bill that was indeed contrary to the need and the best interest of the community and the rights of children and upset the process of reviewing young offenders’ cases. Article 20 of the Public and Revolutionary Procedure Act states that “Reviewing offenses that by law carry the penalty of Qisas–i Nafs [death], execution, stoning, crucifixion, or life imprisonment, as well as political and press related offenses are under the jurisdiction of the Provincial Criminal Court.” (the Provincial Criminal Court is a section of the Court of Appeal that is convened with a panel of five judges.) The above noted two provisions in the law caused confusion in the minds of judicial authorities for years about which body retained competency of review until the issuance of inconsistent and contradictory verdicts required the highest judicial authority, i.e., Supreme Court General Commission—whose ruling is considered legislated law and binding by judicial authorities—to issue a unified procedure for reviewing young offender cases in 2006. The Commission ruled that “in accordance with the note of Article 220 of the Criminal Public and Revolutionary Hearing Procedure Act, ratified 11 April 1999 [22.01.1378], all offenses pertaining to minors under the age of 18 will be reviewed by the Young Offenders Court according to general regulations. Moreover, in accordance with note 1 of Article 20 of the Formation of Public and Revolutionary Court, ratified 13 October 2002, capital offenses that carry the Qisas-i `Uzv [amputation], Qisas-i Nafs [death], execution, stoning, crucifixion, or life imprisonment, as well as political and press related offenses will be reviewed by the Provincial Criminal Court.” According to this note, the preliminary inquiry of capital offenses noted in this law, due to their significance in terms of severity of punishment and their social impact which would require higher judicial attention, moved, predominantly, from jurisdiction of the Young Offenders Court (a one judge court), to jurisdiction of the Provincial Criminal Court (typically presided over by a panel of five judges). That is to say, the majority of the Supreme Court General Commission voted for the competency of the Young Offenders Court to review cases pertaining to minors under the age of 18, with the exception of crimes outlined in the note of Article 20 of the Amended Law Concerning Formation of Public and Revolutionary Courts (2002).
This decision contains several fundamental errors:
1. Judges appointed to the Young Offenders Courts are familiar with the characteristics and temperaments of children and have received special training to enable them to deal with minors, who, due to their age and immaturity, are susceptible and vulnerable. As such, the court environment or any unreasonable treatment can easily divert the path of a minor from a healthy and normal life to an undesirable future. It was precisely for this reason that the Young Offenders Courts were established; otherwise, there would be no need for the creation of these courts, and all cases, regardless of the offenders age, could have been reviewed by regular judges, as done previously;
2. Even though cases in the Provincial Criminal Courts, with respect to the above-noted crimes, are reviewed by a panel of five judges, it is the opinion of the majority judges that determines the fate of the young accused, his/her conviction or acquittal. In practice, however, given that i) most judges appointed to these courts do not have adequate knowledge about children and their particular characteristics and temperaments, ii) most judges during their regular practice often deal with hard-core criminals, iii) perhaps some youth show signs of physical growth, despite their immature minds—judges may easily decide to apply harshness in their judgments and issue unreasonable penalties to young accused persons who would not have had full mental development at the time of the crime, which in turn results in additional mental and psychological pressures on the young offender;
3. Most Provincial Criminal Court judges are unaware that young offenders under the age of 18 are not referred to as ‘criminals,’ rather they are referred to as ‘minors in contempt with the law/young offenders’. The difference in terms is because using words such as ‘criminal’—owing to the harsh nature of the term itself—leaves a negative impact on the character of the child, and causes the child to lose confidence and be easily derailed from his normal path of life. Therefore, when judges do not have the slightest insight as to the characteristics and psychology of children, could they be regarded as competent in reviewing the cases of young offenders and be given official power to do so, even though they are in a panel of five?! There have been cases where three of five judges ruled on the death penalty for a young offender, while the other two ruled against execution based on the fact that the young accused was not of mature mind at the time of commission of the offense, which means that if one of the two judges had ruled on the case of the young offender alone in the Young Offenders Court, the minor would have been spared the death penalty.
In conclusion, lack of a unified system of fair procedure in respect of minors below the age of 18 results in the issuance of verdicts that could lead to the death of a young person thus jeopardizing the judicial security of minors.
B) Exclusion of Defense Attorneys from the Preliminary Investigation
According to Article 35 of the Constitution of the Islamic Republic of Iran, in all court cases, both parties have the right to choose an attorney, and if they do not have the means to retain counsel, the court must provide legal representation. Moreover, Article 128 of the Criminal Hearing Procedure Act guarantees the accused the right to an attorney. The attorney can assist his/her client after the conclusion of the preliminary investigation by casting light on the facts of the case and defending his/her client based on the law before a judge. Statements and submissions of the attorney are reflected in the transcripts.
Up to this point [in the Act] the balance of justice is upheld in respect to the accused. However, the article is supplemented with a note that bars the defense attorney from involvement at the preliminary investigation stage. The note of Article 128 of the said Act states: “Where cases are of a confidential nature, or where the judge would determine that the presence of anyone other than the accused might cause fesad [corruption], or in national security offenses, inclusion of legal counsel at the preliminary investigation stage is at the discretion of the court.” Given that the discretion of the judge in the above-noted type cases is relative, and because the terms ‘fesad’ or cases of ‘confidential nature’ are not clearly and explicitly defined—notwithstanding the inherent inconsistency of this note with the text of Article 35 of the Constitution, defense attorneys are often barred from the preliminary investigation stage in important cases such as murder, kidnapping, sexual assault, etc. and thus unaware of the details that transpire during this crucial stage which in fact becomes the basis of a criminal dossier; or the opportunity to warn his/her client about the nature of the charges and the consequences of the accused persons’ statements. For instance, Mohammad Reza Haddadi, was sentenced to death because he did not have the benefit of legal counsel during the preliminary investigation at age 15 when he was deceived by the conspirators and, based on a promise from the main accused for a certain sum of money, admitted the commission of first degree murder. The court disregarded Mohammad Reza’s [later] testimony—where he explained during the trial that he was deceived by other parties and in fact had not committed the crime he admitted to earlier—and sentenced him to execution.
In conclusion, owing to the fact that children and youth are not mentally fully developed, they can be easily deceived and on many occasions admit, to their own detriment, to crimes they have not committed, or make false confessions as a result of the slightest physical or emotional torture. This method of judicial procedure not only is unfair to mature adults (with fully developed mental capabilities), it is even more so for children. This is yet another reason why minors are unjustly sentenced to death—a verdict that is carried out where the decision is final and binding!
Part IV — Substantive Elements of Juvenile Charges
All cases, adults and children alike, are reviewed in three stages. Two of these stages are mandatory and the third optional. These stages include: 1) a preliminary investigation, conducted by the investigating officer in charge at the lower court. The process is such that the prosecutor in the lower court is responsible for detecting the crime and prosecuting the offender. Once the prosecutor concludes his judicial investigation and decides that he wants to go ahead with prosecution, he issues a bill of indictment, by which he declares his position and asks the court to carry out a certain punishment; 2) a dossier is prepared against the accused and sent to court. Subsequent to the routine administrative process of assigning a judge and court advisors to a branch of the Provincial Criminal Court, the judge reviews the case and orders that a hearing date be set and notices be sent to the accused, complainant(s), witness(es)—if any, and the prosecutor to attend the hearing. At this stage, should the accused have an attorney, s/he can provide the attorney’s information to the court. If the accused is not able to retain legal counsel, the court will have to provide him/her with a court assigned lawyer to offer legal advice and defense. These two stages are mandatory and the procedures must be followed accordingly. 3) If the court issues a verdict to which the accused object, s/he has the right to appeal the court order. In such cases, and based on its nature, the case is reviewed either by the Court of Appeal or the Supreme Court.
As you may have noted, the judicial system of the Islamic Republic and laws adopted by the Islamic Consultative Assembly concerning young offenders, particularly those who face harsh punishments, does not accord with the special needs and sensitivities of a defendant who has not yet reached the age of maturity. These laws and procedures dictate that minors are tried in adult court, .that lawyers for these minors possess a lack of authority in the pre-trial phase of the case to consider the special needs of minors, and the punishments for the actions of minors are not suited to their age and mental competency Although the new laws have incorporated some adjustments towards the best interest of the child, these adjustments are minor and not nearly enough. There is indeed a vital need for more attention to the rights of children.
