Information regarding the extrajudicial killing of Mr. Shirko Amini’s, an Iranian Kurd, was collected from the Fars News Website (November 21, 2005), Radio Farda (November 24, 2005), and from a phone interview conducted by the Abdorrahman Boroumand Foundation (ABF) with a person close to him in Mahabad (August 28, 2006)

Two police officers shot Mr. Amini dead in the Bagh Shaigan neighborhood in Mahabad at 10:00 a.m. on November 20, 2005. He died as a result of two bullet wounds. He was a practicing Sunni from Mahabad in the Azarbaijan Province in the northwest of Iran. He was enrolled in the accountancy program in Payam Nur University in the same city as a last year student. He was not connected to any political parties but had been arrested several times for his religious activities (ABF interview, August 28, 2006).

Independent sources and news agencies reported that the Mahabad population reacted to Mr. Amini's killing by strikes and Bazaar closures. (Radio Farda, November 24, 2005) The official Fars News stressed however that there was no reaction in response to his death. (Fars news, November 21, 2005)

Mr. Amini’s family account regarding the circumstances of Mr. Amini’s death conflicts with the official statements about the event.

Official Reactions

Mr. Amini’s death was reported in Fars News Agency. The latter, referring to a statement by the Head of Police News Agency of Azarbaijan Gharbi Province, described Mr. Amini as a "hooligan in Mahabad who was harassing ladies near the girls’ schools." (Fars News, November 21, 2005).

This police official said that the violent reaction of Mr. Amini to the police officers caused the shootings. According to him, the police officers of the 13th precinct of Mahabad halted Mr. Amini; however he assaulted them with a knife and wounded one officer severely in the abdomen. Subsequently, the other officer, defending himself, shot Mr. Amini dead. (Fars News, November 21, 2005)

There is no mention of a police officer injured by Mr. Amini in any other report. According to a person close to Mr. Amini, after his death at the hospital, the body was taken to the governor’s office and from there to Orumieh for burial. With the family’s persistence, the body was handed back to them in the presence of law enforcement officers and was taken to Mahabad with an ambulance. The burial took place under tight police control and only very close family members could attend it. Police officers, on their way to the funeral, tore down the death announcements from walls, which consisted of leaflets that announced the time and place of Mr. Amini’s funeral (ABF interview, August 28, 2006).

Family Reaction

According to the person interviewed by ABF, in contrary to the official statements, he was a religious and generous man whose activities disturbed local officials. He used to write articles about Kurdistan and give public speeches. He also used to preach to people by reading out verses from the Quran (ABF interview, August 28, 2006).

At the age of 2, Mr Amini had lost his mother and one of his sisters when a bomb shell hit their house during the rocket attack of Mahabad by the central government. Mr. Amini chose this house from which the shell was shot as a place for prayers and meditation. This place was close to the building of National Television in Mahabad, which draw the unfavorable attention of the Herasat office, an intelligence unit within the National TV. He was therefore arrested 3 times (ABF interview, August 28, 2006).

According to Ms. Sheyda Amini, Mr. Amini’s latest arrest was during the protests after Shwaneh Qaderi’s extrajudicial killing (Radio Farda, November 24, 2005). Mr. Kamal Asfarm (Shwaneh Qaderi) was a 28 year old construction worker from Mahabad. The news of his extrajudicial killing along with pictures of his tortured body caused a widespread unrest in Kurdish towns. The protests were repressed violently and many political and civil activists were arrested. Mr. Amini was arrested during these unrests. Although he did not have any political affiliation, he was charged with possession of leaflets pertaining to the Kurdistan Democratic Party (ABF, August 28, 2006).

According to the available information, Mr. Amini had one serious confrontation with a prison guard and was severely beaten as a result. At one occasion, when Mr. Amini was praying, one of the prison guards imitating sexual acts with another male inmate told him: “this is the prayers, not the thing that you do!” Mr. Amini got irritated and attacked and injured the guard. Afterwards, the prison guards beat him severely. Mr. Amini’s father was able to get the release of Mr. Amini by paying Diah (a kind of monetary compensation in cases of corporal injuries) after news leaked from prison alerted him to the life threatening situation Mr. Amini was in after he attacked the guard ( ABF interview, August 28, 2006). None of the available information made it clear whether Mr. Amini was charged with any particular crime or not.

Mr. Amini was in a very bad physical state due to the beatings he was subjected to. His entire body was covered with bruises and injuries (ABF interview, August 28, 2006).

According to a person close to Mr. Amini, his death was not caused by his assault at the police officers but on the day of the incident, Mr. Amini was walking in the street. Two police officers stopped him. One of them approached him from behind and the other blocked his way. A passenger asked them about their behavior and they said: “He has a personal issue with the Captain, which should be settled.” The said passenger walked away and heard a gunshot. This passenger and the shop-keepers who were at the scene stated that one of the officers shot him in the heart from the side. Mr. Amini went down on his knees. Then he shot him again from behind. They escaped from the scene, keeping away the passengers by shooting into the air. The passengers took him to the hospital but he passed away (ABF interview, August 28, 2006).

The Aminis brought a law suit to the Police Prosecution Office. At first, the case was pending because there was no lawyer assigned to it. The case was closed initially but with the family’s follow up, the case was reactivated. Until the day of the interview Sheyda Amini on August 28, 2006, the family was summoned to the court for several times but there were certain impediments in this case, for example, the witnesses did not accept to give their testimonies out of fear because they claimed that they were summoned and interrogated for several times during the procedure of the case. In addition, the victims’ lawyers were not allowed to see the case several months after submitting the law suit with the excuse that the case is related to national security. The case was in possession of the defendants. Until the date of the interview, on August 28, 2006 none of the defendants were summoned to the court (ABF interview, August 28, 2006). 

A Summary of the Defects of Mr. Shirko Amini’s Legal Proceedings

In October-November 2005, Shirko Amini was shot in the street by the police in the city of Mahabad, West Azarbaijan Province. He died of bullet wounds. There are various accounts of what actually occurred. Some sources have reported that the police had planned to carry out the act, while some government sources have stated that the late Mr. Amini had attacked police officers and they had shot him in self defense. Regardless of these different accounts and what in fact transpired, we will conduct a legal analysis of the late Mr. Amini’s death herein, taking into account investigations carried out by judicial and non-judicial authorities. Our criteria will be [evidence] that was available and reliable. The basis of this legal analysis will be the investigations, [conclusions, and] decisions made by judicial authorities.

1.      An Account of the Adjudication 

Subsequent to the late Mr. Amini’s death at the hands of police officers, his father, Ali Amini retains two attorneys and lodged a complaint against three officers involved in the shooting, alleging “intentional homicide.” The case is referred to West Azarbaijan Military Prosecutor’s Office, Branch One for Investigations, in [the city of] Orumieh. The investigating judge commences investigations. The Police Force and the Medical Examiner’s opinions are obtained. The plaintiff is asked to introduce his witnesses; the latter, however, refuse to testify for unknown reasons. According to some sources, giving different excuses, the Prosecutor’s Office refuses to hear certain witnesses who were willing to testify. After the conclusion of the investigating judge’s work, only one of the defendants is deemed to have committed the crime, and the charges against the other two are dropped. The charge against Mandatory [Military Service] Soldier, Mr. A, is stated as “unintentional homicide through negligence” [or “negligent homicide”, also referred to as “manslaughter” in certain jurisdictions].  Hence, at the investigating judge level, the intentional homicide [theory] is dismissed and the indictment is drafted on the basis of unintentional homicide. The defendant is therefore released on bail. After the issuance of the indictment, the case is referred for trial to the West Azarbaijan Military Court, Branch One. In the meantime, the plaintiff, Mr. Amini, who is the victim’s next of kin, dies in February-March, 2008. The Military Court tries the case in June-July 2008 and delivers a judgment: The defendant is sentenced to pay one full Dieh for unintentional homicide, as well as a cash penalty in the amount of five million Rials. 

2.      Legal Analysis of the Case 

a)      It seems that the Military Prosecutor’s Office’s investigating judge did not conduct the necessary investigations. Going to the site of the incident and conducting a full investigation of what transpired, as well as hearing eyewitness accounts could have been a big help in discovering the truth; no eyewitness testimony was heard, however. Even if eyewitnesses had refused to testify for any reason, the investigating judge should have summoned them and recorded their testimony in the file. Dozens of people must have witnessed the events, considering the fact that they occurred in broad daylight on a busy city street. It can therefore be said that witness testimony was the most important piece of evidence for the discovery of the truth and that the investigating judge disregarded this very important issue. 

b)      The plaintiff, that is, the late Mr. Amini’s father, passed away in the middle of the adjudication process. It was therefore necessary for the court to postpone the trial until such time as an heir replaced him in succession. Furthermore, the plaintiff’s attorneys were no longer legally his attorneys and not competent to follow through with the case, since the plaintiff’s death abrogated the grant of power of attorney. The court did not pay attention to this matter and in its judgment, referred to the late Mr. Amini’s father, who was dead at the time, as the plaintiff. Also, the attorneys were officially recognized as the plaintiff’s attorneys, whereas, due to the plaintiff’s death, they had lost the legal capacity to act on his behalf. This made the court’s decision void ab initio. 

c)      The defendant and the Police force contended that the incident and the shooting had occurred in a sudden manner. Relying on expert opinion, the court refuted this contention. The court accepted the two-sided conflict [scenario] but dismissed the contention that it happened suddenly and uncontrollably. On the other hand, the defendant stated that he had suddenly shot at the victim in order to defend an officer; he claimed self defense. The court did not, however, accept this, since defense must be proportionate with the harm, meaning that the person defending must use minimum force; if he could have thwarted the attack using other means than killing the victim, he [should have done so and he] had no right to shoot. Assuming that the victim, the late Mr. Amini had attacked the police officers, they had many other ways to ward him off, including falling back from the scene, and/or arresting him, or ultimately, firing a shot in the air or even shooting him in the lower body to stop him. The police officer, however, shot the victim directly in his torso. Self defense was not therefore acceptable, as the court also so determined. The Military Court had confirmed that the defendant had shot at the victim several times, even aiming at his head. All this evidence showed that the officers shot at the victim on purpose and with the intention of killing him, in violation of the law. Even assuming that the claim that the victim had attacked was correct, it could not justify shooting at him several times. 

d)      “The Law on the Use of Arms by the Armed Forces in Exigent Cases” sets certain criteria for the use of weapons. Pursuant to this Law, use of weapons is allowed only in exigent circumstances (as is obvious from its title). Article 3, Note 3 of this Law provides: “In all cases stated herein, armed officers are allowed to use a weapon only if, first, there is no alternative other than the use of arm, and second, they observe, if possible, the following order:

a-      Shot in the air

b-      Shooting at the waist down

c-      Shooting at the waist up.”

Now, given this Article, it can be said that there was absolutely no necessity and exigency to use a firearm in this case. As discussed above, the police officers could easily have controlled the situation without resorting to firearms. At most, if they thought it was necessary to use a weapon, they could have shot below the waist. This has been confirmed by the Police Force in preliminary investigations; that is, the Police Force itself, has stated that the option of shooting below the waist was easily available.

e)      In spite of the defects in the investigations, the Military Court pointed to all of the above, and expressly [stated and] confirmed that the police officer shooting his weapon was in violation of the law, and dismissed the defendant’s claim of self defense. Surprisingly, however, the Court found that the defendant had committed unintentional homicide. Pursuant to the Islamic Penal Code, if a person uses a deadly instrument, albeit without the intention of killing another, and a person is thereby killed, he/she has committed an act that is typically deadly and the murder shall therefore be considered intentional homicide. [1] Unintentional homicide occurs when the murderer causes another’s death through carelessness or negligence, without intending to kill, and without using deadly instruments.[2] Now, given the [results of] investigations conducted by judicial authorities, and given the Military Court decision, the basic question is this: Is a firearm not a deadly instrument?! Has the defendant not committed a typically deadly act? How is it possibly to rule a murder unintentional when the Court itself admits that the murder occurred because of a direct shot to the torso and that there is no justification for such a shot? The Court itself did not accept the self defense theory; it must be noted that self defense only arises in intentional crimes, not unintentional ones. If the Court believed that the killing constituted unintentional murder, why did it [even] entertain the validity of self defense? Why did the defendant and the Police Force’s legal representative insist on self defense? Self defense is only available when the intentional murder or assault and battery has a justificatory factor. There is no possibility of a conception of self defense in unintentional crimes. It can be said, in other words, that although the Court admitted the commission of intentional homicide, it ultimately ruled that the killing constituted unintentional homicide. Therefore, there is an obvious legal conflict in the Court’s ruling. 

f)       The Court considered the defendant deserving of a mitigated sentence and therefore sentenced him to payment of a cash penalty, whereas such a sentence cannot be applied to this defendant. The Court itself admitted that the defendant firing his weapon was in violation of the law. Furthermore, the gunfire caused the death of a human being. How is it possible to believe that such a defendant deserves a mitigated sentence? Even assuming that the murder was unintentional, an appropriate prison sentence should have been issued for the defendant.g)       

3.      Conclusion 

There is sufficient evidence concerning the late Mr. Amini’s intentional murder by the police officer. This evidence was such that it led the Court to admit [to its existence and accuracy]; ultimately, however, and for unknown reasons, the Court ruled the killing as unintentional and issued a negligible [and very light] sentence for the defendant. The trial, as well as the Court’s ruling, have, respectively, been conducted and issued contrary to Iranian laws and are unjust.

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[1] The former Islamic Penal Code Article 206: “homicide is intentional in  the following cases:

a-       Where the murderer, doing a certain act, intends to kill a specific person, or a non-specific person or persons of a particular group, whether that act is typically deadly or not, but in effect causes death.

b-       Where the murderer intentionally does a certain act that is typically deadly, even though he/she does not intend to kill the person.

c-       Where the murderer does not intend to kill, and the act is not typically deadly, but is typically deadly to the other person due to that person’s illness, old age, incapacity, childhood, and the like, and the murderer is aware of the same.” 

[2] The former Islamic Penal Code Article 295(b): “Murder, injury, or [causing] physical handicap is unintentional if the criminal does not intend to commit an act that would typically cause a crime [to occur], and does not intend to commit the crime upon the victim; for example a person who beats [another] with the intention to discipline, in a way that would not typically cause a crime [to occur] but accidentally causes a crime; or a physician who assists in treating a patient in an ordinary manner and accidentally causes a crime to occur upon him/her.”