Iran Human Rights (IHR); March 5, 2019: A part of the 11th Annual Report on the Death Penalty in Iran, by Iran Human Rights (IHR), deal with International treaties ratified by Iran, Islamic Penal Code & offences punishable by death, as well as procedures.
International treaties ratified by Iran
Iran has ratified the International Covenant on Civil and Political Rights (ICCPR) in 1975, the International Covenant on the rights of Child (CRC) in 1994 and the Convention on the Rights of Persons with Disabilities (CRPD) in 2009.
Iran has nor signed neither ratified any other international human rights convention including the International Covenant against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.
Article 6§2 of the ICCPR states: “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.
Art 6§5 of ICCPR states: Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
Art 6§6 states: “Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.”
Art 7 of ICCPR bans torture and cruel, degrading and inhumane punishments, and Art 14 provides a fair trial and due process and specifically mentions the importance of an impartial judicial system, access to a lawyer and a fair trial, and not compelling individuals to testify against themselves or to confess guilt.
Iran has not ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming for the abolition of the death penalty (OP2).
In a recent General Comment on the Article 6 of the ICCPR, the United Nations Human Rights Committee stated that “The term “the most serious crimes” must be read restrictively  and appertain only to crimes of extreme gravity,  involving intentional killing.  Crimes not resulting directly and intentionally in death,  such as attempted murder,  corruption and other economic and political crimes,  armed robbery,  piracy,  abduction,  drug  and sexual offences, although serious in nature, can never serve as the basis, within the framework of article 6, for the imposition of the death penalty. In the same vein, a limited degree of involvement or of complicity in the commission of even the most serious crimes, such as providing the physical means for the commission of murder, cannot justify the imposition of the death penalty. States parties are under an obligation to review their criminal laws so as to ensure that the death penalty is not imposed for crimes which do not qualify as the most serious crimes.  They should also revoke death sentences issued for crimes not qualifying as the most serious crimes and pursue the necessary legal procedures to re-sentence those convicted for such crimes.”
The UN Human rights Committee also stated that “Under no circumstances can the death penalty ever be applied as a sanction against conduct whose very criminalization violates the Covenant, including adultery, homosexuality, apostasy,  establishing political opposition groups,  or offending a head of state.  States parties that retain the death penalty for such offences commit a violation of their obligations under article 6 read alone and in conjunction with article 2, paragraph 2 of the Covenant, as well as of other provisions of the Covenant.”
The HRC also highlighted that States parties that have not abolished the death penalty must respect article 7 of the Covenant, which bars certain methods of execution including public executions.”
Art 37a of the CRC states: “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age”.
However, upon ratification, Iran made the following reservation: "If the text of the Convention is or becomes incompatible with the domestic laws and Islamic standards at any time or in any case, the Government of the Islamic Republic shall not abide by it”.[MRA1]
Since 2007, Iran has been voting against the Resolution of United Nations General Assembly calling for a universal moratorium on the use of the death penalty. In December 2018, Iran voted against the Resolution once again.
Death Penalty According to the Iranian Law
Chapter III of the Constitution of the Islamic Republic of Iran contain provisions relating to the rights of the people. In this Chapter, Article 22 states: «The dignity, life, property, rights, domicile, and occupations of people may not be violated, unless sanctioned by law.”
However, the number of crimes carrying the possibility of the death penalty in Iran is among the highest in the world.
Charges such as “adultery, incest, rape, sodomy, insulting the Prophet Mohammad and other great Prophets, possessing or selling illicit drugs, theft for the fourth time, premeditated murder, moharebeh (waging war against God), ifsad-fil-arz (corruption on earth), fraud and human trafficking” are capital offences.
Many of as the charges punishable by the death penalty cannot be considered as “most serious crime” and do not meet the ICCPR standards . Murder, drug possession and trafficking, rape/sexual assault, moharebeh (waging war against God) and Corruption on earth are the most common charges resulting in the death penalty in Iran.
Most of the charges punishable by death are described in the Islamic Penal Code (IPC). Drug-related offences are described in other legislation.
1. Islamic Penal Code & Offences Punishable by Death
In April 2013, the Iranian Parliament finally passed the new Islamic Penal Code (IPC). On May 1, 2013 the IPC was ratified by the Guardian Council - and was communicated to the government for enforcement on May 29, 2013.
The new IPC has retained the death penalty in almost all the instances that were already punishable by death under the previous IPC. Moreover, it appears that its scope has been expanded in some cases. As in the previous draft of IPC, the new version explicitly states (Article 220) that Article 167 of the Constitution can be invoked by the judge to pronounce hudud punishments that the law has not addressed: “the judge is bound to endeavour to judge each case on the basis of the codified law. In case of the absence of any such law, he has to deliver his judgment on the basis of authoritative Islamic sources and authentic fatwa. He, on the pretext of the silence of or deficiency of law in the matter, or its brevity or contradictory nature, cannot refrain from admitting and examining cases and delivering his judgment.”
According to the IPC the following offences are punishable by death penalty:
a) Sexual Offences
Incest and fornication
A death sentence shall be imposed on the male party in cases of incest, fornication with stepmother, fornication of a non-Muslim man with a Muslim woman and fornication by force or reluctance. The punishment for the female party shall be decided by other provisions concerning fornication (Article 224 of the IPC).
Adultery between married parties is punishable by stoning (see below for more details).
Same sex relations
Lavat (Penetrative male homosexual sex)A death sentence shall be imposed on the ‘active party’ only if he is married or has forced the sexual act, but the ‘passive party’ shall receive the death penalty regardless of marital status.
A non-Muslim ‘active party’ in a sexual act with a Muslim party shall also receive the death sentence (Article 234 of the IPC). The non-Muslim ‘active party’ in same-sex relations not involving penetration shall also be sentenced to death.
Lesbianism shall be punished on the fourth occasion if ‘offenders’ are sentenced and receive the lashing punishment on the first three occasions. This has not been specifically stated in the law, but can be inferred from the provisions of Article 136 of the IPC on Repeat Offenders (see below).
Article 279 of the IPC defines mohareb (a person who fights God) as someone who takes up arms in specific cases. This includes bandits, robbers and smugglers who take up arms (Article 281 of the IPC).
Article 282 of the IPC delivers a death sentence in the case of moharebeh However, the judge has the option of imposing an alternative punishment of crucifixion, amputation of the right hand and left foot or internal exile away from the defendant’s home town.
Under the previous IPC, which was in force until 2013, the charge of moharebeh was frequently used against political dissidents and people with relations to the opposition groups abroad, even if they were non-violent. The new penal code has provided for their punishment under the notion of “corruption on earth and rebellion.”
c) “Corruption on Earth” & Rebellion
The new IPC has introduced a new concept of “rebellion” that did not exist in the previous Code. This chapter has expanded the scope of the death penalty for all those who are convicted of “corruption on earth.”
Article 286 of the IPC defines “corruption on earth” as “a person who commits a crime on an extensive level against the physical integrity of others, the domestic or external security, spreads lies, disrupts the national economic system, undertakes arson and destruction, disseminates poisonous, microbiological and dangerous substances, establishes corruption and prostitution centres or assists in establishing them.”
However this article does not give concrete definitions of the term “crime” and the scope of “extensive;” therefore, this gives the judges more power to interpret the law at their own will.
Article 287 of the IPC defines “rebels” as the members of any group that stage armed uprisings against the Islamic Republic of Iran, and stipulates that they shall be sentenced to death.
d) Murder and Qisas
Qisas refers to retribution in kind. The qisas death sentence has been retained for murder in the new IPC. As in the previous IPC, it exempts the following situations or people from qisas ; - Father and paternal grandfather of the victim (Article 301 of the IPC) - A man who kills his wife and her lover in the act of adultery (Article 302), ;
- Muslims, followers of recognised religions, and “protected persons” who kill followers of unrecognised religions or “non-protected persons” (Article 310).
- Killing of a person who has committed a ‘hudud’ offence punishable by death (Article 302 of the IPC),
- Killing a rapist (Article 302 of the IPC),
The law indirectly encourages arbitrary killings by private individuals. Experts believe, for instance, that article 301 and 302 might be contributing to the increased number of honor killings in Iran (REF). The law also discriminates against followers of “unrecognised” religions. Article 301 says: “qisas shall be established...if the victim is sane and has the same religion as the culprit. Note: If the victim is Muslim, the non-Muslim status of the culprit shall not prevent qisas.” This concerns, in particular, members of the Bahai faith, which is not recognised as a religion, according to the Iranian law. If a Bahai follower is murdered, the family does not receive blood money (Diyeh), and the offender is exempted from qisas. In 2013, there were two reported Baha’is murder cases. On April 23rd, Saeedollah Aqdasi was murdered in his house in Miandoab (Northwestern Iran) and Ataollah Rezvani was shot in Bandar Abbas (Southern Iran) on August 24th;] none of these cases have been properly investigated.
e) Other Religious “Offences”
Article 262 stipulates the death sentence for cursing the Prophet of Islam, any of the other grand prophets or for accusing the infallible Imams and the Prophet Mohammad’s daughter, Fatima Zahra, of sodomy or fornication. Apostasy, sorcery, witchcraft and other such issues have not been explicitly mentioned in the new IPC, although apostasy has been specifically referred to in the Press Code (Article 26). Under sharia law, the punishment for apostasy is death, which a judge can impose by invoking Article 167 of the Constitution.
f) Repeat Offenders
Article 136 stipulates that repeat offenders who commit an offence punishable by hudud, and who are punished for each offence, shall be sentenced to death on the fourth occasion. This article has failed to specify the hudud offences and has only mentioned the death sentence for fourth-occasion theft in Article 278. Nevertheless, articles 220-288 have defined the hudud offences as follows: fornication and adultery, sodomy, lesbianism, pimping, cursing the prophets, theft, drinking alcohol, qadf (false accusation of sodomy or fornication), moharebeh, corruption on earth and rebellion.
The IPC has retained the punishment of stoning for those charged with adultery while married (Article 225). Nevertheless, the courts have been provided with the alternative to impose the death sentence upon the approval from the Chief Justice “if it is not possible to perform stoning.”
h) Juveniles & Death Penalty
The new IPC retains death sentence for juveniles. Although Articles 89-95 suggest corrective measures and alternative punishments for children and juveniles, Article 91 is very clear that the offences punishable by hudud or qisas are exceptions to this rule. It is important to note that almost all juvenile offenders executed in the past 7 years were sentenced to death based on qisas and hudud paragraphs.
Article 91: For offences punishable by hudud or qisas, mature persons younger than 18 shall be sentenced to the punishments stipulated in this chapter (articles 89-95) if they do not understand the nature of the offence committed or its prohibition or if there are doubts about their maturity or development of their reasoning.
The Article leaves it to the discretion of the judge to decide if a juvenile offender had understood the nature of the offence and was mature at the time of committing the offence and thus to impose the death sentence on them. The Note to Article 91 authorises but does not require, the court to seek the opinion of the Forensic Medical Department or to use any other means to reach a verdict.
Moreover, while article 146 provides that immature persons do not have criminal responsibility, article 147 repeats the provisions of the previous law and the Civil Code regarding maturity and the age of criminal responsibility. Girls are mature at the age of 9 lunar years and boys at the age of 15 lunar years. Therefore, a girl older than 8.7 years and a boy older than 14.6 years can be sentenced to death.
Former MP and deputy chairperson of the Laws Review Committee of Parliament, Mussa Qorbani, who was involved in drafting and editing the new IPC, confirmed that children and juveniles will continue to be sentenced to death under the new IPC: "This law is based on the implementation of the qisas and hudud except in cases where a juvenile does not know about the criminal nature of the action. On the other hand, if a juvenile knowingly commits murder, he/she shall remain in the correctional facility if he/she is younger than 18 and shall receive the qisas after reaching the legal age, as has been the procedure before."
The juveniles’ offenders executed in 2018 stayed in prison or correctional facilities until they reached the age of 18 and were then executed (see the “Juvenile Offenders” part of report).
2. The Anti-Narcotics Law
The Iranian Anti-Narcotics Law was drafted in 1988 and previously amended in 1997 and 2011. Both amendments were aiming to counteract Iran’s growing drugs problem by expanding the scope of the law and introducing harsher sentences. The 2011 amendments introduced the death penalty for the possession of as little as 30 grams of heroin and included new categories of drugs in the law. All together the Anti-Narcotics Law, including the 1997 and 2011 amendments, imposed the death penalty for 17 drug-related offences, including: a fourth conviction for drug-related offences in several instances; planting opium poppies, coca plants or cannabis seeds with the intent to produce drugs; smuggling more than five kilograms of opium or cannabis into Iran; buying, possessing, carrying or hiding more than five kilograms of opium and the other aforementioned drugs (punishable upon a third conviction); smuggling into Iran, dealing, producing, distributing and exporting more than 30 grams of heroin, morphine, cocaine or their derivatives.
The new amendment to Iranian Anti-drug law which was enforced on November 14, 2017, includes a mechanism to limit the use of the death penalty and reduce the sentences of those sentenced to death or life imprisonment. The new amendment increases the minimum amounts of illegal drugs that would subject convicted producers and distributors to a death sentence, raising the level of synthetic substances, such as heroin, cocaine, and amphetamines, from 30 grams to two kilos and that of natural substances, such as opium and marijuana, from five kilos to 50 kilos (Amendment, art. 45(d).) The punishment for those already sentenced to death or life in prison for drug-related offenses should be commuted to up to 30 years in prison and a fine . Death sentences should be restricted to those convicted of carrying or drawing weapons, acting as the ringleader, providing financial support, or using minors below the age of 18 or the mentally ill in a drug crime, and to those previously sentenced to death, life imprisonment, or imprisonment for more than 15 years for related crimes.
The complete translation of the new amendments to the Anti-Narcotic law is available in the Annual Report on the Death Penalty 2017.
A broader discussion on the legal procedures and the due process in Iran is beyond the scope of this report and can be found elsewhere. The ICCPR which Iran has ratified promotes the rule of law and underlines equal legal rights for all individuals regardless of sex, ethnicity, opinion or belief and ban many forms of discrimination. Article 14 specifically mentions the importance of an impartial judicial system, access to a lawyer and a fair trial, and not compelling individuals to testify against themselves or to confess guilt. However, lack of due process is probably the biggest obstacle to significant improvements in the human rights situation, and the situation of the death penalty in particular. Perhaps lack of an impartial Judiciary, and inequality in front of the law are the most important structural reasons for the lack of due process in Iran. Head of the Judiciary who is directly selected by the country’s highest political authority, the Supreme leader and must report to him. The Chief of the Supreme Court and all judges are selected by the head of Judiciary based on their ideological affiliation and political background, converting the Judiciary to a political organ which is neither impartial nor independent. Citizens are not equal in front of law; men have more rights than women, Muslims have more rights than non-Muslims, and Shia Muslims have more rights than Sunni Muslims.
In this section, we will briefly address the typical legal procedures from the arrest to a death sentence. Due to the arbitrary nature of the judicial system, not all the procedures are necessarily followed in every death penalty case.
From arrest to the proof of guilt
Access to lawyer
Article 35 of the Iranian Constitution grants access to lawyer. The Criminal Procedure Code drafted in 2013 and the amendments of 2015 address among others, a suspect's access to lawyer in the pre-trial phase. Article 48 of the Criminal Procedure Code states: “When a suspect is arrested, he or she can request the presence of an attorney. The attorney, observing the secret nature of the investigation and the negotiations between the parties, should meet with the suspect. At the end of the meeting, which should not last more than one hour, the attorney may submit his or her written notes to be included in the case file”. However, a note added in the final draft puts limitations on the suspect’s rights to choose a lawyer. The amended note says: “In cases of crimes against internal or external security, and in cases involving organized crime, where Article 302 of this code is applicable, during the investigation phase, the parties to the dispute are to select their attorneys from a list approved by the head of the judiciary. The names of the approved attorneys will be announced by the head of the judiciary». The note effectively states that in serious criminal cases and those involving charges commonly used against political prisoners and prisoners of conscience, during the pre-trial investigation phase defendants may only select attorneys from a list approved by the head of the judiciary. In June 2018, the Judiciary announced a list of 20 attorneys who are allowed to defend citizens with security and political cases.
However, none of the people sentenced to death regardless of charges, which IHR has acquired information about, have had access to a lawyer in the initial phase after their arrest.
Torture under detention
Article 38 of the Iranian Constitution bans all forms of torture and forced confessions. However, reports gathered by IHR and other human rights NGOs indicate that torture is widely used against the suspects after their arrest and in the pre-trial phase in order of extract a confession. All death row prisoners IHR has been in contact with have witnessed that they were subjected to torture in order to confess to the crime they were charged with. This is not limited only to those with political or security-related charges. Almost all prisoners who are arrested for drug offences have been kept in solitary confinement and subjected to physical torture in the investigation phase following their detention, while being denied access to a lawyer. In many cases confessions given during detention have been the only evidence available for the judge to base his verdict upon. Torture is also used in other criminal cases involving rape or murder where there is not enough evidence against the suspect. In 2014 a man who had confessed to the crime but was absolved of all charges 48 hours before his execution was to be carried out, was asked as to why he had confessed to a murder he had not committed? He answered: “They beat me up so much that I thought if I falsely do not confess, I would die during the interrogation”. [JB2]
Courts and Trials
Among the charges punishable by death penalty, murder and rape charges are tried by the Criminal Courts, while all security-related charges, corruption, and drug trafficking are processed by the Revolutionary Courts.
The Revolutionary Courts were established in 1979 by the first Supreme leader, Ayatollah Khomeini. They were temporary courts designed to deal with the officials of the former regime. However, they continue to operate and are responsible for the vast majority of the death sentences issued and carried out over the last 38 years in Iran. The Revolutionary Courts are not transparent and Revolutionary Court judges are known for greater abuse of their legal powers than other judges. Revolutionary Court judges routinely deny attorneys’ access to individuals who are subjected to extensive interrogations under severe conditions. According to the former UN Special Rapporteur on the situation of human rights in Iran, Ahmed Shaheed, who interviewed 133 people facing trial in the country for a 2014 report focused on Iran’s juridical system, 45% of those interviewed reported that they were not permitted to present a defense; in 43% of cases trials lasted only minutes and 70% of interviewees reported that coerced information or confessions had been reportedly used by the judge or made up at least part of the evidence presented by the prosecution. Some 65% of interviewees reported that the judge displayed signs of bias such as by reproaching or interrogating defendants and limiting their ability to speak and present a defense.[JB3]
In a series of interviews with the IHR bi-weekly Farsi law journal “Hoghogh-e-ma”, several prominent Iranian lawyers and jurists in the country questioned the constitutionality of Iran’s Revolutionary Courts and called for their dissolution.
Asma Jahangir, a prominent Pakistani human rights defender and the Special Rapporteur on the human rights situation in Iran, stated in an interview that “the Revolutionary Courts” have forced Iran into a critical situation and added that “without reforming the judicial system, improving the human rights situation in Iran will be impossible.” In her last report, the former Special Rapporteur stated that she was also “deeply concerned by the ongoing, numerous, and consistent reports received of due process violations, including but not limited to the use of prolonged solitary confinement and significant limitations placed upon the ability of the accused to access a lawyer. In particular she calls upon the Government to strictly limit the use of solitary confinement and ensure full access to their choice of lawyer. She further reiterates her recommendation to abolish the revolutionary tribunals and religious courts in line with the recommendations made by the Working Group on Arbitrary Detention following its visit to the country.
All cases regarded as security-related, such as cases involving political and civil activists and others allegedly involved in corruption and drug-related charges, are processed by the Revolutionary Courts.
Ways of proving the guilt
Confession is the most common way of proving guilt in the death penalty cases. As mentioned previously, confessions are often extracted under torture. In security-related cases mainly used against political dissidents televised confessions are broadcasted even before a final verdict is made. Other ways of proving the guilt include testimony by eyewitness (by two just men; a woman’s testimony is worth half of the man’s). Witness testimonies are also used to prove the guilt in the absence of confession. In addition, according to the Islamic Penal Code, when confessions or testimony by eyewitnesses are missing in a case, the judge can make a decision based on his exclusive opinion, without any reference to laws and codes. This phenomenon is known as ‘knowledge of the judge’, or elm-e qazi. The law requires that rulings based on a judge’s ‘knowledge’ derive from evidence, including circumstantial evidence, and not merely personal belief that the defendant is guilty of the crime. However, there have been cases where ‘knowledge of the judge’ has been applied rather arbitrarily. For instance, in December 2007, Makwan Moloudzadeh was executed for sodomy charges based on the ‘knowledge of the judge. Qassameh, or sworn oath is another way to prove a crime (murder or injury) in the Islamic jurisprudence (fiqh) which is practiced in Iran. Qassameh is based on swearing an oath on the Quran by a certain number of people and is performed when the judge decides that there is not enough evidence of guilt to prove the crime but the judge still thinks that the defender is most probably guilty. It must be noted that the people who swear in Qassameh are not usually direct witnesses to the crime. In 2017 at least two people were executed for murder without any hard evidence or a confession. They were sentenced to death only based on Qassameh by members of the plaintiff’s family members. In one of the cases, the defendant insisted that he was innocent and that he could prove that he was in another city at the time of the offence. However, 50 male members of the plaintiff’s family gave an oath that the defendant was guilty. He was sentenced to death and executed in Mashhad on May 23, 2017.
In 2017, IHR dedicated a full issue of its legal journal “Hoghogh-e-ma” to Qassameh and interviewed several lawyers and religious scholars on the issue. Since then, there have been increasing debate around the issue of Qassameh inside Iran and in the Farsi media outside the country.
Procedures of the Death Penalty
After being sentenced to death, the prisoners are held in the prison. It might takes years, months and sometimes weeks from receiving the final verdict to implementation of the death sentence. All death sentences must be approved by the Supreme Court, whose chief is appointed by the head of the Judiciary. In addition, head of the Judiciary must give his permission (Estizan) before implementation of all qisas executions.
According to the Iranian law, the defendant’s lawyer must be informed about the scheduled execution 48 hours before the implementation. However, it is not always followed, especially in in political and security related cases. Prisoners are transferred to solitary confinement several days before the execution, where their hands are cuffed. The prisoner is normally granted a last visit with the family the day before the execution. IHR has published a short report based on witness interviews about the death row conditions and the prisoners’ last hours.
Methods of execution
The Iranian Penal Code has described several execution methods, including hanging, fire squads, crucifixion, and stoning. However, hanging has been the main method of execution and the only method used since 2010.
Majority of the executions are carried out inside the prisons. In some prisoners there are specific rooms designated for the executions, while in other prisons the executions are carried out in the prison yard. The picture above is a rare display of an execution room in Vakilabad Prison of Mashhad published by the Iranian media in 2018. Six prisoners were hanged charged with Moharebeh for armed robbery.
In murder cases where the defendant is sentenced to qisas, the plaintiff must be present at the scene of execution. Since the Iranian authorities consider qisas as the right of the plaintiff, family members of the murder victim are encouraged to carry out the actual execution. IHR has received several reports where the plaintiff’s family members have actually conducted the execution.
Presence of the judge issuing the death sentence, and in case of qisas death sentence, presence of the plaintiff (family members of the victim) in addition to the judge, is mandatory under the execution.
When carried out in public spaces, the executions are carried out using cranes. The prisoners are either pulled up or the object they are standing on is removed from underneath them. In this case, the prisoners die of suffocation and strangulation and it often takes several minutes until death occurs.
No implemented stoning punishments have been reported since 2010. It is mainly due to the increasing international pressure during the last decade reaching a peek following the campaign to save Sakineh Ashtiani in 2010.