In an article that was published in Etemaad Meli daily newspaper in Iran, human rights Iranian attorney Mohammad Mostafaei challenged Iran’s judiciary’s for violating Iran’s own laws by execution children. In this legal breakthrough Mostafaei clearly documented that not only child executions violates international conventions but it is also in direct violation of Iran’s laws:
With a detailed attention to the laws and rules of our country pertaining to the execution of the children under the age of 18, we can conclude that issuing death sentence for children who have committed a crime before the age of 18 is against the strict law of Iran.
In reference to the article 49 of the Islamic Sharia’s Penal Code, which is the authority relied upon by the judiciary in ordering executions:
Children are excluded from criminal responsibility:
The subtitle of this law (article 49) has referred to a child as a person who has not reached the maturity as defined under Sharia law. However no where in the Islamic Sharia Penal Code or other existing laws has there been a reference to the AGE of the penal responsibility of a child and the lawmakers have only referenced to Sharia Hadd (death sentence) without stating the age.
Indeed in Civil Code sections which pertain to judicial matters, as opposed to the Penal Code, the lawmakers in Subtitle 1 of Article 1210 have determined that the age of maturity for a boy is 15 years and for a girl 9 years. This article has relied on the age of puberty as the basis for civil maturity and has required proof by an expert for the elimination of rights in personal and civil matters.
However In reference to financial matters, Subtitle 2 of this article states that: “The property of a minor who has reached puberty can be given to him after the maturity has been proven and therefore the maturity must be established“. In other words a minor after reaching the age of puberty and upon proof of maturity has the right to independently transfer or interfere in properties by contract or by legal order for those properties owned before reaching puberty but has no right to such interference before maturity has legally been established. Based on the principal of the “definitions to the benefit of the accused” within the criminal matters, one can not refer to civil laws when defining penal codes, and the (penal) laws must be specifically defined. There is a difference of opinion among experts regarding the age of penal responsibility and no specific age has been determined to be the age at which child becomes criminally responsible.
However by referring to international laws we can determine that the age of penal responsibility for children with respect to death penalties is 18 years of age. Item 1 of article 37 of the Convention on the Rights of the Child clearly states that “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 “. In the year 1993 , based on the laws and due to the importance given to children , this was approved by the Islamic Parliament of Iran under the title of “Permission to Government of Islamic Republic of Iran to Join the Convention on the Rights of the Child” .
The aforementioned Article of the Convention without any objections was ordered to the executive branch and its articles were issued. Article 9 of Iran’s Civil Code states: ” Treaties and conventions which have been ratified in accordance with the constitution between the governments of Iran and other governments are defined as laws.”
Therefore based on the ratification of this convention as law (by the lawmakers), and its approval by the respectful members of the council of experts, the age of maturity for death sentences and executions of persons who have committed a capital crime is 18 years. Consequently, all of the death sentences issued by the respectful members of the judiciary for crimes committed prior to attaining the age of 18 years, are in violation of Sharia law and should be reversed.
Unfortunately the respectful members of the Iranian judiciary have overlooked this principle of law and continue to consider the penal ages of 9 and 15 (lunar years).
Attorney of Law
Mohammad Mostafaei
