Justice for Iran: Execution of Children and Iran’s New Penal Code/ Raha Bahreini

 

Within the past few days, much controversy and confusion has ensued over Iran’s amendments to those provisions in its Penal Code that pertain to juvenile justice. Government authorities have praised themselves for bringing Iran into compliance with its international obligation to not execute individuals under the age of eighteen. Reporters and commentators have expressed praise, mixed with doubt and confusion, about how the amendments can bring about the abolition of the death penalty for children in conflict with the law. This note discusses some of the flaws and contradictions that are apparent in the Code and fundamentally limit its effectiveness in terms of preventing the execution of children.

Our analysis should begin with defining two distinct yet interrelated concepts: the minimum age of criminal responsibility and the age of majority.

– The minimum age of criminal responsibility is the minimum age below which children are presumed not to have the capacity to infringe the penal law. Articles 145 and 146 of the Code put this age (referred to in the Code as the age of maturity- سن بلوغ) at nine for girls and fifteen for boys.

– The age of majority is, by contrast, the age after which individuals are held to fully comprehend the consequences of their criminal decisions and are to be punished as adults. The Code does not provide a clear definition of this age. Its provisions suggest, however, that it is the internationally accepted age of eighteen.

As commentators, it is imperative that we do not collapse these two concepts into each other so that we can arrive at a realistic assessment of the promises and limitations of the new code.

Age of Majority

The standards of international law as contained in the Convention on the Rights of the Child (CRC) are clear with respect to the age of majority: Individuals do not reach it until they become eighteen. As a signatory to the CRC, Iran must respect this definition and prohibit the use of adult punishments including the death penalty for all individuals who were under the age of eighteen at the time of committing an offence.

The New Code is a welcome but insufficient step in this direction. Its relatively progressive character relates to those provisions of it that divert under-eighteen offenders away from the criminal system and to correctional centers. Its insufficiency lies in the exception however that it carves out for crimes that incur the punishment of had and qesas. Article 90 of the Code provides that mature under-eighteen individuals (i.e., boys between the ages of fifteen and eighteen and girls between the ages of nine and eighteen) who are convicted of had and qesas crimes may be exempted from adult sentences including the death penalty if [and this is an enormously consequential if] they establish 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 action. This in effect means that there is an implied presumption in favor of execution in cases of had and qesas involving juveniles and the presumption can be only rebutted with evidence of mental immaturity. Iran as such remains in violation of its international obligations under the CRC which contains an absolute prohibition against the execution of under-eighteen individuals.

It must be noted that this penal arrangement will affect girl offenders in particular as their age of criminal responsibility is six years below that of their male counterparts. Accordingly, they have to face the prospect of adult sentencing in cases of had and qesas after the age of nine while boys have to face that only after the age of fifteen. One might want to hope that the second addendum to Article 87, which provides for correctional measures in cases of had and qesas involving “immature” ((نابالغ juveniles between the ages of twelve and fifteen, will save young girl offenders from this bleak prospect; however, this is not likely because the provision is directed at immature ((نابالغ juveniles and girls are considered to be mature after the age of nine. It is needless to say that this approach to juvenile penal law is discriminatory and places Iran, yet again, in breach of its obligations under the CRC which requires states to protect the rights of children “without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”

Minimum Age of Criminal Responsibility

The recent amendments to the Code also perpetuate a problem that has long been recognized as one of the fundamental flaws of Iran’s juvenile penal law and that is the conflation of the minimum age of criminal responsibility ( (سن بلوغwith the age of majority. As noted at the outset, the minimum age of criminal responsibility is simply about that minimum age below which children should be presumed not to have the capacity to infringe penal law. This is and should be entirely different from the age of majority which is the age at which one may be treated and punished as an adult. Iran’s penal system has often took the minimum age of criminal responsibility for the age of majority, thus allowing individuals under the age of eighteen to be treated and sentenced as adults as soon they reach the minimum age of criminal responsibility. The New Penal Code is a partial and inadequate attempt at addressing this flaw.

– Its Article 87 and 88 define a range of correctional measures for individuals between the ages of twelve and fifteen, and fifteen and eighteen who are convicted of ta’zir crimes. These articles make no reference to the word maturity (بالغ) and can be therefore safely assumed to apply to both girls and boys. As such, they close the sentential gap, at least in so far as ta’zir punishments are concerned, that previously allowed children, primarily girls, to be treated and punished as adults as soon they passed the age of minimum criminal responsibility.

– The Code fails to extend this positive provision to crimes that incur the punishments of had and qesashowever. The second addendum to Article 87 holds that correctional measures are available for “immature” individuals between the ages of twelve and fifteen who are convicted of had and qesasoffences. The inclusion of the adjective “immature” (نابالغ) in the addendum renders this clause unintelligible however for it means that girls are excluded from the scope of the Article’s application. It is not clear if this has been indeed the intention of the parliament because the Article because boys between the ages of twelve and fifteen are already exempt from criminal responsibility and are diverted to correctional and rehabilitative centers under Articles 145 to 147 of the Code. The anomalous result of all this is that girls as young as nine continue to be vulnerable to adult sentences including the death penalty in had and qesas cases.

In order to avert this injustice, Iran’s Penal system must, among other things, increase the minimum age of criminal responsibility (بلوغ) for girls, making it the same as that for boys. Should Iran want to change the minimum age of criminal responsibility for both genders, it must ensure that this age is defined in accordance with the current state of knowledge about emotional, mental, and intellectual maturity and the recommendations of the Beijing Rules and the Committee on the Rights of the Child. The Beijing Rules acknowledge that history and culture inform the choices of each state as to setting a minimum age of criminal responsibility; however, they note that the age must not be fixed at too low a level so that the concept of responsibility would become meaningless. In this relation, the Committee on the Rights of the Child has noted that a minimum age of criminal responsibility below the age of 12 years is “not internationally acceptable.”[۱]According to the Committee, “a higher minimum age of criminal responsibility, for instance 14 or 16 years of age, contributes to a juvenile justice system which, in accordance with article 40 (3) (b) of CRC, deals with children in conflict with the law without resorting to judicial proceedings, providing that the child’s human rights and legal safeguards are fully respected.”[۲]

Concluding Statements

Iran must comply with its obligation under the CRC to not execute individuals for crimes committed when under the age of eighteen and in doing so must remove all express and implied exceptions in its Penal Code including Article 90 that are inconsistent with the absolute prohibition against execution of children under international law.

Iran must further define the minimum of age of criminal responsibility in its penal system in accordance with the current state of knowledge about emotional, mental, and intellectual maturity and without distinction and discrimination as to sex and gender.

Finally, Iran must provide for a range of appropriate correctional and rehabilitative measures for above the minimum age of criminal responsibility minors who come into conflict with the law, and therefore refrain from conflating the minimum of age of criminal responsibility with the age of majority in its sentencing practices.

 

Raha Bahreini has a law degree from Osgoode Hall Law School, York University, Canada and an honors bachelor in Women and Gender Studies from the University of Toronto. She is currently a public law interest articling fellow at Amnesty International Canada.

 

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[1] CRC General Comment No. 10, supra note 23 at paras. 32-33.

[2] CRC General Comment No. 10, supra note 23 at paras. 32-33.