Iran: Proposed Penal Code Deeply Flawed
(Beirut) – Proposed amendments to Iran’s penal code would violate the rights of accused people and criminal defendants, Human Rights Watch said in a report released today. Iranian authorities should suspend enactment of the proposed amendments and undertake a major overhaul of the country’s abusive penal laws.
The 48-page report, “Codifying Repression: An Assessment of Iran’s New Penal Code,” says that many problematic provisions of the current penal code remain unaddressed in the proposed amendments. Some of the amendments would weaken further the rights of criminal defendants and convicts and allow judges wide discretion to issue punishments that violate the rights of the accused. Lawmakers and judiciary officials have cited the amendments as a serious attempt to comply with Iran’s international human rights obligations.
“These amendments do little to address penal code provisions that allow the government to jail, torture, and execute people who criticize the government,” saidJoe Stork, deputy Middle East director at Human Rights Watch. “If Iran wants to comply with its human rights obligations, it should completely and categorically ban deplorable practices like child executions, limb amputations, and stoning.”
In January 2012 the Guardian Council, an unelected body of 12 religious jurists charged with vetting all legislation to ensure its compatibility with Iran’s constitution and Sharia, or Islamic law, approved the final text of an amended penal code. Parliament and other supervisory bodies have approved and finalized the text of the amendments, but President Mahmoud Ahmadinejad has not yet signed the amended code into law. Ayatollah Sadegh Larijani, who is the head of Iran’s judiciary, has ordered Iran’s courts to apply the old penal code until Ahmadinejad signs the new amendments into law, which could happen at any time.
Iran’s Islamic Penal Code, which went into effect in 1991, reflects the ruling clerics’ interpretation of Sharia law, based on the Jafari or Twelver Shia school of jurisprudence. It includes discretionary (ta’zir) punishments not specifically laid out in Sharia law that apply to most of Iran’s national security laws, under which political dissidents are convicted and sentenced in revolutionary courts.
The latest amendments address changes in three types of punishments specified in Sharia law: hadd – crimes against God, such as adultery and drinking alcohol, for which Sharia law assigns fixed and specific punishments); qesas – retributive justice, often reserved for murder; and diyeh – compensation to victims in the form of “blood money.”
The most serious problems with the new provisions include their retention of the death penalty for child offenders and for crimes that are not considered serious under international law, Human Rights Watch said. The amendments also fail to define clearly and set out in the code several crimes that carry serious punishments, including capital punishment.
They also include broad or vaguely worded national security-related laws criminalizing the exercise of fundamental rights. And they would permit the continued use of punishments that amount to torture or cruel and degrading treatment, such as stoning, flogging, and amputation.
The amendments also reinforce previously discriminatory provisions against women and religious minorities.
Contrary to official assertions that the amendments will prohibit the execution of people less than 18 years of age, the new law retains the death penalty for children in certain circumstances. Children convicted of ta’zir or discretionary crimes such as drug-related offenses may no longer be sentenced to death but instead to correctional and rehabilitation programs.
But the new code explicitly pegs the age of criminal responsibility to the age of maturity or puberty under Sharia law, which in Iranian jurisprudence is 9 years for girls and 15 years for boys. A judge may, therefore, still sentence to death a girl as young as 9 or a boy as young as 15 convicted of a “crime against God” or qesas crime such as sodomy or murder if he determines that the child understood the nature and consequences of the crime.
Iran remains the world leader in executing people convicted of committing an offense while under the age of 18. The government maintains that Iran does not execute children because authorities wait for child offenders to reach 18 before executing them. In 2011 at least 143 child offenders were on death row in Iranian prisons, the vast majority for alleged crimes such as rape and murder. Death sentences for those crimes would not be affected by the amendments.
“The absolute prohibition on the execution of child offenders convicted of discretionary crimes such as drug trafficking is long overdue,” Stork said. “But it is of little consolation to the dozens of child offenders currently on death row for other crimes, and their families.”
The new amendments continue to allow the death penalty for activities that should not constitute crimes at all – certain types of consensual sexual relations outside of marriage – or that are not among the “most serious” crimes (typically those that cause the death of a victim) under international law. Other crimes that carry the death penalty under the new provisions include insulting the Prophet Mohammad and possessing or selling illicit drugs.
The revised penal code allows judges to rely on religious sources, including Sharia law and fatwas issued by high-ranking Shia clerics, to convict a person of apostasy or sentence a defendant convicted of adultery to stoning. This remains the case even though there is no crime of apostasy under the penal code, and stoning as a form of punishment for adultery has been removed from the new provisions.
The new provisions also expand upon broad or vaguely defined national security crimes that punish people for exercising their right to freedom of expression, association, or assembly. One troubling amendment concerns article 287, which defines the crime of efsad-e fel arz, or “sowing corruption on earth.” Legislators have expanded the definition of efsad-e fel arz, a previously ill-defined hadd crime closely related to moharebeh(enmity against God) that had been used to sentence to death political dissidents who allegedly engaged in armed activities or affiliated with “terrorist organizations.” The new definition also includes clearly nonviolent activities such as “publish[ing] lies,” “operat[ing] or manag[ing] centers of corruption or prostitution,” or “damage[ing] the economy of the country” if these actions “seriously disturb the public order and security of the nation.”
Under the current penal code, authorities have executed at least 30 people since January 2010 on the charge of “enmity against God” or “sowing corruption on earth” for their alleged ties to armed or terrorist groups. At least 28 Kurdish prisoners are known to be awaiting execution on national security charges, including “enmity against God.” Human Rights Watch has documented that in a number of these cases, the evidence suggests that Iran’s judicial authorities convicted, sentenced, and executed people simply because they were political dissidents, and not because they had committed terrorist acts.
Human Rights Watch opposes the death penalty in all circumstances because it is unique in its cruelty and finality, and is plagued with arbitrariness, prejudice, and error. In addition, Iranian trials involving capital crimes have been replete with serious violations of due process rights and international fair trial standards.
The Iranian authorities should abolish punishments retained or permitted under the new penal code that amount to torture or cruel and inhuman treatment, such as flogging, amputation, and stoning, Human Rights Watch said.
“These penal code amendments are nothing but a continuation of Iran’s reprehensible track record when it comes to administering justice in the courts,” Stork said. “Real criminal reform in Iran requires a wholesale suspension and overhaul of the Iranian penal code that has been a tool of systematic repression in the hands of the authorities, including the judiciary.”