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Half Measures: Juvenile Execution Under Iran’s New Penal Code
source: http://www.iranhumanrights.org/2012/02/new-penal-code-commentary/
By: Nargess Tavassolian

Iran’s new penal code was finally approved by the Guardian Council, a body of clerics and lawyers in charge of approving legislation, in February 2012. Once the new penal code is signed by President Mahmoud Ahmadinejad and published in the official gazette, it will officially replace the current penal code.

The Iranian government purports that the new penal code abolishes the execution of children under eighteen. However, this claim does not stand up to examination: under the new penal code, juvenile execution is still not fully abolished.

This article provides some background regarding juvenile execution in Iran and examines relevant articles in the new penal code.

Juvenile Execution Under the Previous Penal Code

Iran is among the few countries in the world that still practice juvenile execution. Under the previous penal code, which will be rendered null if the new one is signed and published, the age of criminal responsibility is the same as the age of “puberty,” which is defined as nine lunar years for girls and fifteen lunar years for boys. A lunar year is approximately equal to 354 days. Hence, according to the previous law, if a nine-year-old girl committed a crime, she would be charged as an adult.

Unfortunately, within the previous penal code, inhumane punishments such as stoning, amputation, and flogging were allotted for a variety of crimes.

The previous penal code categorized crimes into five different groups according to their punishments. The punishment types are differentiated by their theological, judicial, or legislative origins. Three of these categories included capital offenses:

  1. Qesas is a retributive form of punishment specified in sharia (i.e., Islamic law) in which the punishment should be equal to the crime. Qesas is essentially the concept of “an eye for an eye.” Thus the penalty for homicide, which is categorized as a qesas crime, is death unless the victim’s family accepts financial compensation, called blood money or diyeh.
  2. Hodoud is a punishment for which the degree and type has been specified in sharia. The death penalty can be imposed for some hodoud crimes, such as certain degrees of adultery, lavat or sodomy, moharebeh or “enmity against God,” and “spreading corruption on earth.”
  3. Ta’zir is a punishment for which the degree and type has not been specified in sharia but rather is left to the discretion of the judge. Narcotic smuggling is a ta’zir crime punished by death under Iran’s Anti-Narcotics Law.

International Pressure and Iran’s Reaction

For more than 20 years, Iranian civil society and the international community have objected to the Islamic Republic’s use of the death penalty on offenders under the age of eighteen. This act is in clear breach of Iran’s obligation under international law and the various treaties, including the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights, which Iran has joined.

In response to internal and international pressure, Iran began a policy of keeping juvenile offenders in prison until they reached the age of eighteen and then executing them. However, this policy continued to fly in the face of the international prohibition on juvenile execution because the prohibition applies to the execution of offenders that were under eighteen at the time of the crime, not the time of the execution.

The former head of the judiciary, Ayatollah Mahmoud Hashemi Shahroudi, issued circulars in 2003 and 2008 in which he requested that judges not issue execution verdicts for children under eighteen. However, neither of these circulars successfully ended juvenile executions as many judges did not abide by them, using the justification that the law superseded the circular, which they found to be in conflict with the law.

Facing internal and external pressure, in August 2009 the Parliament finally ratified a draft of a new penal code which purported to abolish the execution of children under eighteen. However, for years the Guardian Council did not approve the draft code, and the bill was returned to the Majlis in November 2011 under the justification that it breached sharia. Finally, the Guardian Council approved the new penal code in February 2012.

Juvenile Execution Under the New Penal Code

The new penal code largely maintains the same categories of crimes, and the new punishments are more or less the same. Some of the elements of certain crimes, including adultery and sodomy, have, however, changed.

Nonetheless, with the approval of this new penal code, the Iranian government proudly announced that it had abolished the execution of children under eighteen. However, according to articles 145 and 146 of the new penal code, the age of criminal responsibility is still “puberty,” meaning nine lunar years for girls and fifteen lunar years for boys. Hence, the age of criminal responsibility has not changed at all in the new penal code.

Under article 87, executions for discretionary punishments, the majority of which are for trafficking narcotics, have indeed been abolished for children under eighteen and have been replaced with other punishments or correctional measures, such as referring the child to a psychologist, to a cultural or educational center, to the Center for Addiction and Mental Health, or to the Juvenile Correctional Facility. The latter can only be applied to children between twelve and eighteen years of age.

Although article 87 abolishes juvenile executions for certain crimes, it is not yet clear what effect the new penal code will have on other types of crimes. While most executions in Iran are for drug crimes, most juvenile executions are for qesas homicide-related crimes, such as cases where a fight occurs and a child is stabbed to death.

Article 90 of the new penal code stipulates that legally “mature” individuals under eighteen (i.e., boys between the ages of fifteen and eighteen and girls between the ages of nine and eighteen) who are convicted of hodoud and qesas crimes may be exempted from adult sentences—including the death penalty—only if it is established that they were not mentally mature and developed at the time of committing the crime, and could not recognize and appreciate the nature and consequences of their actions.

Thus, this article gives judges the discretion to decide whether a child has understood the nature of the crime and therefore whether he or she can be sentenced to death.

Conclusion

The new penal code is an improvement over the previous penal code in some aspects. Juvenile execution is abolished for ta’zir crimes, thus limiting the crimes for which under-eighteen offenders can be punished. Moreover, juvenile offenders charged with hodoud or qesas crimes could have the chance of evading executions as the death penalty is no longer mandatory for these offenses if the judge determines the juvenile did not have the requisite mental maturity.

Nonetheless, the new law does not completely abolish juvenile executions and falls short of requirements under international law. The law still maintains the age of criminal responsibility at nine lunar years for girls and fifteen lunar years for boys. It still permits the use of the death penalty against juvenile offenders in hodoud or qesas crimes.

As such, the new penal code can only be considered a step towards abolishing juvenile execution in Iran. Iranian authorities need to amend legislation further before they can truly claim to have abolished juvenile executions and to be following international human rights law on the matter.

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Nargess Tavassolian is a human rights lawyer. She is currently a Ph.D. candidate in Law at the School of Oriental and African Studies in London.