Criminal Responsibility of Children in the Islamic Republic of Iran’s New Penal Code
Source:Human Rights Documentation Center http://bit.ly/w30C8z
February 2012) — In this IHRDC legal essay, Iranian defense lawyer
Mohammad Hossein Nayyeri explains why the new Islamic Penal Code,
despite allegations to the contrary in the media, does not end the
application of the death penalty to juvenile offenders in Iran.
By Mohammad H. Nayyeri
Attorney at Law, Iranian Bar Association
LLB, LLM, PhD Candidate, Tehran, Iran
LLM Human Rights, London, UK
According to international rules, including the Convention on the Rights of Child (CRC) and the Beijing Rules,
every human being under the age of eighteen years old is considered to
be a child and shall not be subject to any criminal punishment. In fact,
the criminal regime for children has been separated from that for
adults—and the former has a supporting, correcting, and protecting
character. It is also internationally accepted that neither capital
punishment nor life imprisonment shall be imposed for offences committed
The problem that arises in the Islamic Republic of Iran (IRI), and
perhaps with other Islamic states, is the contradiction between, on the
one hand, the internationally accepted notion of “child” and age of
criminal responsibility and, on the other hand, the age of maturity
under Islamic Shari’a.
In other words, internationally accepted standards, without any
discrimination between boy and girl, have determined that the age of 18
is the standard age of entering into majority and full criminal
responsibility. In Islamic sources, however, reaching the age of
maturity is deemed to be the point of leaving childhood and becoming an
adult which results in full criminal responsibility. Additionally, in
none of the Islamic schools is the age of maturity under Islamic Shari’a law in complete conformity with the age of 18 as enshrined in international instruments and the age varies for boys and girls.
Before the adoption of the new Code, according to article 49 of the
old Penal Code, “children” were exempted from criminal responsibility
and, therefore, Correction and Rehabilitation Centers were in charge of
correcting measures. However, ignoring the internationally accepted
definition of the child, note 1 of the same article defined a child as
an individual who has not reached the age of maturity under Islamic Shari’a. Nevertheless, the old Code was silent on how old is “the age of maturity under Islamic Shari’a”, and, in practice, it arguably referred back to the Civil Code.
According to Islamic sources, the criterion for criminal responsibility is reaching the age of maturity which, according to the Shi’ite
School in the IRI, is 9 lunar years (8 years and 9 months) for girls
and 15 lunar years (14 years and 7 months) for boys. However, proving
maturity even before the aforementioned ages is possible under Islamic Shari’a
on the basis of other physical signs. For example it is possible that a
boy under the age of 15 is deemed as having attained maturity under
Islamic Shari’a, if he is capable of producing sperm.
Regarding the old Penal Code, there have been many legal and
religious disagreements about the age of maturity and criminal
responsibility. Some Islamic jurists held different views on the age of
maturity—for example some proposed the age of 13 lunar years for
maturity of girls. In addition, the majority of lawyers believed that
recognition of criminal responsibility for a girl of 8 years and 9
months old and a boy of 14 years and 7 months old is wrong and violates
international standards including the Convention on the Rights of Child
and conflicts with the modern needs of society.
There has been also another criticism: while the minimum age for many
legal affairs such as the application for a driver’s license, obtaining
a passport, and/or signing a deed, etc. is 18 years old, and people
under the age of 18 years old are not considered as meeting the
physical, mental and rational requirements for these acts, those same
people, if they commit a crime, will be treated as an adult with full
For this, the IRI has always been criticized by international bodies
and in return it has tried to justify and deny the cases. To alleviate
some of the criticism, the IRI has taken different measures—for example,
it has often postponed the execution of the death penalty for juvenile
convicts until they reach the age of 18. However, in some cases such
considerations have been ignored completely and there is no room for any
justification left. For instance, when a juvenile under the age of 18
is sentenced to the death penalty and executed before reaching the age
of 18, there is no room left for denial and justification.
Apparently, changes made in the new Penal Code are based on the same
criticisms and international pressures. But one may ask whether these
changes are real and whether the new Penal Code is a step forward? At
first blush, what is striking is that the new Code includes an article
that exempts immature children from criminal responsibility: according
to article 146 “Immature children have no criminal responsibility”.
Also, article 148 provides correctional and security measures for
In addition, contrary to the old Code, the new Penal Code has
stipulated the age of maturity: article 147 fixes the age of 9 lunar
years for girls and 15 lunar years for boys as the age of maturity.
Therefore, the age of maturity under Islamic Shari’a is stipulated as the criterion for criminal responsibility and fatwas
(i.e. religious opinions) which offer older ages are dismissed. So in
fact, the hope that the minimum age of criminal responsibility is
changed with time is lost.
On the other hand, while the old Code contained only two
aforementioned articles dealing with the criminal responsibility of
children and the special correctional and security measures that should
apply to them, the new Code shows a special consideration to this matter
and allocates articles 87 to 94 to the issue. The changes of the new
Penal Code in this regard are very complicated and require deep analysis
and scrutiny. The first point that needs to be explained is the
categorization of children in the new Code under four groups, each
subject to different rules:
- Children under 9 years old
- Children between 9 and 12 years old
- Children and juveniles between 12 and 15 years old
- Juveniles between 15 and 18 years old.
However, this categorization is only complete when combined with the categorization of crimes and punishments: 1-Hudud 2-Qisas 3-Ta’zir. In addition, when hudud and qisas punishments are relevant, the maturity age is of importance. Therefore, the following eight situations are imaginable:
1- Children under 9 years old commit Ta’zir crimes:
In such cases, there is no criminal responsibility, nor any
correctional and security measures provided by law. Although the Code is
silent on this, any other conclusion seems to be irrational. In this
regard, there is no difference between girl and boy.
2- Children under 9 years old commit crimes punishable by Hudud and Qisas:
In such cases, the gender of the child is of importance. If the child
offender is a boy, considering that he has not reached the age of
maturity, according to article 87, he shall be subject to minor
correctional and security measures such as submission to his parents
with promise of correction, sending the child to a social worker or
psychologist, banning him from visiting specific persons or places, etc.
If the child offender is a girl under 8 years and 9 months, she shall
be treated the same. However, if she is a girl who has reached the age
of maturity but she is under 9 years old (e.g. she is 8 years and 10
months), she may be subject to hudud and qisas punishments (which will be referenced in more details in situation No. 8 down below).
3- Children between 9 to 12 years old commit Ta’zir crimes:
The court shall sentence this group of children to minor correctional
and security measures such as submission to their parents with promise
of correction, sending the child to a social worker or psychologist,
banning them from visiting specific persons or places, etc. [For this
category of crimes], there is no difference between girls and boys.
4- Children between 9 to 12 years old commit crimes punishable by Hudud and Qisas: In
such cases, again, the gender of the child makes a huge difference. If
the child offender is a boy, considering he has not reached the age of
maturity, according to article 87, he shall be subject to minor
correctional and security measures (see No. 2). However, if she is a
girl, considering that girls in this age range have reached the age of
maturity, she may be subject to hudud and qisas punishments (which will be referenced in more details in situation No. 8 down below).
5- Children and juveniles between 12 to 15 years old commit Ta’zir crimes: In the case of minor ta’zir crimes, the court’s decisions are similar to children of 9 to 12 years old (see No. 3). But, in the case of severe ta’zir
crimes, the court may sentence the child to be held in a Correction and
Rehabilitation Center from three months to one year. [For this category
of crimes], there is no difference between girls and boys.
6- Children and juveniles between 12 to 15 years old commit crimes punishable by Hudud and Qisas: As stated above, when hudud and qisas
punishments are concerned, the gender and the age of maturity remain
important and make considerable differences. Thus, if the child offender
is a boy who has not reached the age of maturity (14 years and 7
months), like severe ta’zir crimes (No. 5), he may be convicted
to up to one year in Correction and Rehabilitation Center. However, if
the child is a boy who has reached the age of maturity (e.g. 14 years
and 9 months old), or if the child is a girl in this range of age (e.g.
13 years old), s/he may be subject to hudud and qisas punishments that are described in more detail below (see No. 8)
7- Juveniles between 15 to 18 years old commit Ta’zir crimes: In such cases, depending on the importance of the crime, the sentences may vary. But in the case of severe ta’zir crimes, the sentence is limited to a maximum of five years in a Correction and Rehabilitation Center. For minor ta’zir
crimes, the sentence will not exceed more than 2 years in a Correction
and Rehabilitation Center, public service and financial fines. In this
respect, there is no difference between a girl and boy.
8- Juveniles between 15 to 18 years old commit crimes punishable by Hudud and Qisas: Considering article 90 and other articles of the Code, I have no doubt that in such cases, hudud and qisas
punishments can be awarded. In other words, a juvenile between 15 to 18
years old, whether a boy or girl, has reached the age of maturity and
bears criminal responsibility. Consequently, in the case of committing
crimes punishable by hudud and qisas, s/he may be sentenced to such punishments. As mentioned above, on the issues of hudud and qisas, the Code still relies on the age of maturity under Islamic Shari’a.
Therefore, if a boy—after reaching the age of 15 lunar years (14 years
and 7 months)—and a girl—after reaching the age of 9 years (8 years and 9
months)—commit crimes punishable by hudud and qisas, they may not be sentenced to correctional and security measures, but instead may be subject to hudud and qisas rules and will be treated as adults.
However, article 90 of the new Code, may, in special conditions, exempt such children and juveniles from hudud and qisas punishments and provide correctional and security measures instead:
Article 90 – In respect of crimes
punishable by hudud and qisas, if the offenders, who are under 18 years
old but have reached the age of maturity, do not understand the nature
of the committed crime or its prohibition, or if there is a doubt about
their mental development and perfection, then, according to their age,
they shall be awarded one of the punishments provided in this chapter.
Note – In recognizing the mental development and perfection, the
court may ask for the opinion of Forensic Medicine or employ other means
which it deems appropriate.
Therefore, when, for example, a 17 year old boy or girl commits a
murder, if according to the opinion of the judge, s/he understands the
nature of the crime, and, Forensic Medicine confirms his/her mental
development, subject to other conditions, s/he may be sentenced to qisas
(i.e. the death penalty). So, contrary to what the spokesperson of the
Judicial and Legal Commission of the IRI Parliament asserted, and unfortunately what was accepted and distributed by the media, qisas
punishment for people under 18 years old has not been abolished and is
still a strong prospect for such offenders. Similarly, in the case of hudud crimes such as an illicit sexual relationship (zena), sodomy (levat), homosexual behavior between girls (musaheqeh),
etc. it is still possible for child and juvenile offenders to be
sentenced to violent and inhumane punishments such as the death penalty,
stoning to death, flogging, etc. Moreover, this MP’s assertion about
the lack of gender discrimination in relation to hudud and qisas, is not true at all.
It is not deniable that according to the new Code, there have been some desirable changes in respect to ta’zir punishments. As a result, children, if they commit ta’zir
crimes before turning 18 years old, whether they are boys or girls, and
whether they have reached the age of maturity or not, shall be
sentenced merely to correctional and security measures. So, there is no
possibility for application of adult ta’zir punishments on
children and juveniles. In comparison with the old Code, in which
reaching the age of maturity resulted in full criminal responsibility,
these changes may be regarded as positive, especially for girls. In
addition, the possibility of averting hudud and qisas
in a situation in which a lack of mental development is proved is
another positive change, though this is arguable and does not completely
solve the problem.
However, it should not be forgotten that the reform which has always
been encouraged by human rights activists and international bodies, is
the complete abolition of the death penalty and qisas and
violent punishments, without ifs and buts, for all people under 18 years
old, which is not the reform taken here. Therefore, the bold assertions
of the spokesperson of the Judicial and Legal Commission of the IRI
Parliament that qisas and the death penalty for people under 18
years old is prohibited in the new penal code, are not acceptable. The
way the related articles are stated in the new Code is rather to cause
jugglery and dishonesty, and, assertions made by this MP pursue the same
goal of distracting the minds. Using the solar year metric instead of
the lunar year when dealing with the correctional measures on the one
hand whilst entering the notion of maturity under Islamic Shari’a in the definition of children and juveniles on the other hand, in fact creates a loophole for hiding the bloody rules of hudud and qisas inside correctional and security measures designed specifically for children.
I stress again that, under the new Penal Code, there remains the possibility of the application of hudud and qisas
punishments on people under 18 years old, and, obviously it has not
been abolished. In addition, contrary to some assertions, the new Code,
like the old one, clearly discriminates between boys and girls. The IRI
authorities, however, try to introduce these inhumane and discriminatory
rules as progressive ones and in conformity with international
standards! The truth is that the IRI is far from meeting international
standards on the rights of the child and nothing is gained through such
lacking and deceitful efforts.
 United Nations Standard Minimum Rules for the Administration of Juvenile Justice
 Paragraph (a) of article 37 of the Convention on the Rights of Child
 Note 1 of article 1210
 For example, Alireza Mullah Soltani, born in December 1993, was hanged on September 21, 2011, in retribution (Qisas)
for the murder of Ruhollah Dadashi. Human rights activists objected to
the execution of the 17 year old minor and the Islamic Republic of Iran
was criticized for killing underage criminal offenders. (link: http://www.en-hrana.org/index.php?option=com_content&view=article&id=521;17-year-old-alireza-mullah-soltani-hanged&catid=10;children&Itemid=8)
 Crimes punishable by hadd (pl. hudud)
are those with fixed and severe punishments in Islamic sources. These
include crimes such as illicit sex, sodomy, homosexual behavior between
women, consumption of intoxicants, muharebeh, etc. and are punishable by the death penalty, stoning to death, amputation of the right hand and the left foot, flogging, etc.
 Crimes punishable by Qisas
(retribution) are a category of crimes under Islamic criminal law which
are best illustrated by the old maxim “An eye for an eye, a tooth for a
tooth, and a life for a life”.
 Crimes punishable by ta’zir are those for which punishments are not fixed and instead are left to the discretion of the Shari’a judge. However, almost all ta’zir
crimes are dealt with in the Penal Code and the judge may apply the
punishments in the Code. They include the rest of the crimes rather than
hudud and qisas.
 There is another category (Diya)
which deals with financial compensation for bodily harms and injuries.
But, as it plays no important role in this specific discussion and
violent punishments for children, it is not mentioned here.
 For example, the newspaper Donya-ye-Eqtesad, in its February 12, 2012 edition, in a piece titled “Prohibition of Qisas Punishment for People under 18 Years Old” stated: “Spokesperson of Judicial and Legal Commission of Parliament stressed that, by passage of the new Islamic Penal Code, qisas punishment for people less than 18 years old is prohibited.
Amin Hossein Rahimi, in respect to the recent changes in the Penal
Code, declared: the age of criminal responsibility in the old Penal Code
was 9 and 15 lunar years which were different between girls and boys
and the age of maturity under Shari’a was the criterion. But, in
the new Code, we defined the age of criminal responsibility in a way
that girls and boys under 18 years old are considered as children and
juvenile and the punishments of adults are not applied on them anymore.
This MP, in response to the question of whether these offenders will be
punished after reaching the age [of 18] like in the past, said no.
Before the age of criminal responsibility was 9 and 15 years, but now,
if the offender is under 18 years old, he/she shall be sent to
Correction and Rehabilitation Center”. Link: http://www.donya-e-eqtesad.com/Default_view.asp?@=289512