Capital punishment is a state-sanctioned killing to deprive one of the right to life. It is vis a vis murder. Capital punishment might be administered by the natural persons. Capital punishment should not be carried out without court’s verdict, before following full judiciary due process, including formal criminal hearing procedure, and observing the rights of the accused. In the absence of observing hearing and court procedures and process, or the denial of the rights of the suspect (the accused), if the government sanctions death penalty and executes the sentence, this action is called “arbitrary” or “extrajudicial.” The difference between arbitrary execution and murder is that in the first situation, the government by taking advantage of its superiority, hegemony, and authorities vested in it, conspicuously deprives one of the right to life. While in the latter, the person or persons surreptitiously and secretly perpetrate the killing.
Capital punishment, in the laws of the Islamic Republic of Iran, is emanated from the Quran, Sunnah, Islamic laws and Shi’a jurisprudence resources. The death penalty falls under two types of punishments: a) hudud; b) ta’zir. In the case of hadd (singular of hudud, i.e., mandatory punishment–trans.), its quality and quantity are specified by God in the Quran. The judiciary officials and justices have no authorities to change it. Contrary to hadd, there are not any pre-mandated punishments in the case of ta’zir. The punishment is at the discretion and within the authorities of the Islamic government. For instance, death sentences on cases related to the armed conflict falls under hadd. While the death sentences related to drug trafficking falls under ta’zir.
The first time that capital punishment was included in the penal code was on Dey 23, 1304 after it was ratified. The amendment of which (Article 170) as the highest punishment on murder cases on Khordad 7, 1352. After the 57 revolution, the Majlis (the Islamic Consultative Assembly–trans.) ratified the Islamic penal code in 1362. It was to be implemented tentatively with a five-year probation period. Later in Mordad 1370, the same law including general provisions, hudud, qisas (lit: retaliation in kind–trans.), diyat (compensation paid to the heirs of a victim [blood money and ransom] –trans.) was passed by the judicial and legal commission of the Majlis. However, the final bill was ratified by the Expediency Discernment Council because there was a disagreement between Majlis representatives and the Guardian Council concerning this bill (the final ratification of any bill before enforcing it is by the Guardian Council. In case of an unresolved disagreement between Majlis and the Guardian Council, the Expediency Discernment Council arbitrates—trans.). In 1375, the laws of ta’zir and other deterrent punishments were added to the Islamic penal code. Its implementation was extended for another ten years. In Tir, 1383, the newspapers informed that drafting “the law for founding a national institution to defend the rights of citizens” has started. This draft included 8 chapters and 109 articles. According to Article 5 of this law, the death penalty was restricted to very exclusive cases of crimes in compliance with the irrevocable international rules of law.
Finally, to pass an inclusive and comprehensive law, in 1386, the judiciary branch prepared the Islamic penal code bill including the provisions, hudud, qisas, and diyat. The branch sent it to the government for approval. After government passed it, the bill was headed to the Majlis in Azar 1386. After many years of deliberations, the Majlis passed the bill forwarding it to the Guardian Council for final ratification in 1391. The Guardian Council sent it back to the Majlis with some comments to be addressed. Finally, in Dey 1392, the spokesperson for the Guardian Council informed of the final ratification of the law. The implicit elimination of stoning punishment and the obligation of the courts to issue a substitute punishment for the execution of juveniles under 18 years old were among the most important changes in the new law.
Iran wins one of the world highest records for the most executions. Therefore, the state is continuously condemned by the UN human rights Council and the General Assembly. A remarkable number of capital punishments are related to drug trafficking cases. These punishments are not derived from hadd. In 1396, to alleviate international pressures because of the high number of executions, the judiciary branch of the Islamic Republic of Iran decided to eliminate death penalty for the suspects of drug trafficking. Then, the Majlis, by amending the law of combatting drug trafficking, eliminated death penalty for the suspects of this crime other than for the kingpins of the drug bands and when there is an armed drug trafficking.
Crimes with Capital Punishment
According to the Islamic penal code, death penalty is issued in cases as follows: murder (Article 290), extramarital sex (Article 224 and Provision 3 of Article 132), sodomy (Article 234), intercrural sex (Provision of Article 236), repeating crimes which bear hadd more than three times (Article 136), sab al-Nabi (Article 262 [type of blasphemy, i.e., abusing and insulting the Prophet Mohammad–trans.]), theft after the fourth arrest (a paragraph of Article 278), muharebeh (Article 282 [hirab-lit: unlawful warfare or piracy but fig: waging war against God–trans.]), spreading corruption on earth (Article 286), and baghy (Article 287 [lit: trespass, but fig: riot or rebellion against the Imam or the Islamic ruler/government—trans.]).
Within Iran’s law, death penalty is sometimes issued using the very same term and sometimes under the term qisas. The implementation of both qisas and death penalty might technically be the same. But the biggest difference between the two lies in the very fact that in the case of qisas, the punishment for murder cases is forgivable, whereas the punishment for muharebeh, i.e., waging war against God is unforgiveable. For instance, if someone kills someone, and murder is proved in the court, he is sentenced to qisas. Qisas is of three types: the choice of which lies within the authority of the victim’s family and survivals. The first choice is to forgive the murderer and grant pardon; the second choice is to accept blood money (diya) from the murderer; the third choice is to deprive the murderer of the right to life (execution).
From the perspective of the criminal law and in the Islamic penal code, capital punishment is of three types:
1. Qisas Death Penalty: This type of punishment is carried out when there is a murder. It has specific features. The presence of the private plaintiff in this type of sentencing removes it from the realm of the international laws. The permission of the Supreme Leader and other factors are very influential in this type of punishment.
2. Hadd (mandatory) Death Penalty: Considering the definition of hadd by the Islamic jurists, one can define death penalty based on hadd as follows: It is a death penalty mandated by God and the Prophet Mohammad. One cannot reduce it to less than death. Death penalty based on hadd falls into the following categories:
A. Sexual Crimes including zena (extramarital sex and/or unlawful sexual intercourse): adultery, incest, rape, or sex of non-Muslims with a Muslim woman, and sodomy.
B. Crimes against Religion and Societal Security: It includes muharebeh, i.e., waging war against God and the Islamic state, and apostacy.
C. Repetition of Crimes: Such as repeating adultery for the fourth time which follows a death sentence.
3. Ta’zir (discretionary punishment) Death Penalty: It is a death penalty decided by the judge and/or a ruler. Majority of the Shi’a jurists believe that the principle is that ta’zir is beneath hadd. But under one of the following three circumstances: the expediency of the individual and the society, spreading corruption on earth, and forbidding the evil, discretionary (ta’zir) death penalty is permitted.
Crimes That Result in Death Penalty in Iran
Muharebeh and Baghy
In accordance with Article 186 of the Islamic penal code, “any organized group or association that perpetrates an armed resurrection, as long as the union remains existing; whereas all the advocates and followers are aware of the stance of the group or association or organization; and as long as they adhere to the goals and purposes of the group, that group is considered muhareb (person/s who wages war against God or the Islamic state) even if they are not part of the armed branch of the group.” As it is clearly specified in the article, all armed members of the group regardless of their status in the group; even if they did not perpetrate any armed activities are charged with muharebeh (waging war against God and the Islamic state). However, in 1392, with the amendment of this article in accordance with chapter 4, Article 130 of the Islamic penal code, the definition of muharebeh, and spreading corruption on earth extended and included the leader of any organized criminal band as well. The punishment for muhareb, or a person who spreads corruption on earth is capital punishment. In accordance with Article 279 of the Islamic penal code passed in 1392, muharebeh means drawing weapon, the punishment of which is death. However, if drawing weapon does not harm the security, it does not fit within the definition of muharebeh. In accordance with Article 282, there are 4 types of punishments for muhareb (perpetrator of such war): a) death penalty; b) crucifixion; c) amputation of the right hand and left foot; d) exile.
The bandits (highway thieves), burglars and smugglers who use weapon are considered muhareb. Hence, the same punishments are awaiting them. In accordance with Provision 1 of Article 114, muhareb’s repentance revokes execution if he whose punishment is execution repents before detention. In Article 287, baghy is defined as armed rebellion against the Islamic Republic of Iran. Its punishment is death sentence.
Baghy and Spreading Corruption on Earth
Article 286 of the Islamic penal code reads as follows: He who perpetrates crime against human body; crimes against domestic and/or foreign security of state; spreading lies; disrupting the economic order of the state; incineration and vandalism; spreading toxic, poisonous and dangerous germs, and materials; establishing or helping to launch brothel houses. Whereas these actions result in severe disruption in the public order of the state; insecurity and/or sustaining a major casualty and damage to one’s body, or private and public properties; or spreading moral corruption or prostitution in a wide range. The perpetrator of these actions is considered perpetrator of corruption on earth. Hence, he is sentenced to capital punishment.
Provision – Whenever the court citing available evidence and documents does not reach to the conclusion there was an intention to cause a widespread disruption in the public order; flaring insecurity; causing major damage and harm; and/or spreading moral corruption or prostitution; whenever the court does not infer that the perpetrator was aware of the impact of his actions; whenever the crime does not fall under another penal code; the perpetrator (taken into account the impact and the volume of the harm resulting from the crime), is sentenced to fifth-degree or six-degree discretionary punishment (ta’zir).
Article 287 of the Islamic penal code is as follows: Any group that perpetrates an armed resurrection against the Islamic Republic of Iran is considered baghy, i.e., an outlaw (one who exits the infallible Imam or his righteous representative–trans.). In the case of using arms, the members are sentenced to death penalty. Article 288 of the Islamic penal code is as follows: Whenever the members of a baghy, i.e., outlaw group are arrested before clashes and before drawing arms; whereas the organization and the union still exists, they are sentenced to the third-degree discretionary punishment (ta’zir). Whereas the union is destroyed, they are sentenced to the fifth-degree discretionary punishment (ta’zir).
Espionage
Article 63 – Anyone who verbally or in written communicates with a citizen of a hostile government; whereas that verbal or written communication does not embrace any of the crimes mentioned in the previous article; whereas this verbal or written communication includes information and interests that harm the military or political affairs of Iran; the perpetrator’s punishment is two to ten years of solitary confinement. Whereas the communication verbally or in written conveys espionage, the perpetrator’s punishment is death.
Sab al-Nabi (a type of blasphemy: abusing and insulting the Prophet Mohammad–trans.)
In chapter 5 of hudud, sab al Nabi is a crime founded by the new law. It is included in Article 262 against those who insult Mohammad (the Prophet of Islam), the prophets, Imams, Zahra (Mohammad’s daughter and Ali’s spouse). The punishment of which is death penalty.
Drug Crimes
After the foundation of the Islamic Republic of Iran (the 57 revolution), capital punishment, as the first law on combatting drugs trafficking, was ratified by the Majlis in 1359. The law addressed the following actions: poppy plantation if the action is repeated; importing and selling opium, heroin, morphine, cocaine, in any amount; keeping; hiding; carrying more than one kilogram of opium; and 5 grams of heroin, morphine and cocaine. In 1396, a step was taken with the intent of reducing the number of death penalties for the suspects of drug crimes. The plan was “adding an article to the law of combatting drug trafficking.” The death penalty, however, remained intact.
In Article 8– the amendment of combatting drug trafficking ratified in 1367– heavy sentences have been enacted for “importing; manufacturing; producing; distributing; exporting; delivering; selling and buying; making it available for sale; keeping; hiding or carrying” “heroin, morphine, cocaine, and other chemical derivatives from morphine and cocaine.” In compliance with the first amendment to Article 1 of combatting drug trafficking passed in 1396, the sentences are as follows:
Capital punishment and confiscation of the assets gained from the crimes related to psychedelic drugs (amphetamine, methamphetamine, … including DSL and crystal meth); whereas the amount is more than 2 kilograms. The confiscation of assets excludes a conventional livelihood for the convict’s family.
Of course, there are 5 contingencies on the execution of death penalty:
1. The accomplice or at least one of the partners in crime was armed during the crime action; or they were carrying a firearm or hunting rifle with the intent to fight against the officers.
2. He is the kingpin and leader of the band.
3. He is a financial supporter and/or a drug investor.
4. In the perpetration of crime, he has used children and teenagers under 18 years old and/or the insane people.
5. He has already been convicted to death penalty, life imprisonment, or more than 15 years in prison for perpetrating crimes related to drugs.
Death penalty is imposed for the maximum limit of 2 kilograms for the psychedelic drugs; of 3 kilograms for morphine and cocaine derivatives; of 50 kilograms for drugs with lower negative impact on the consumers (such as opium, hashish, marijuana, opium milk and opium residue and …).
Disrupting the Economic System of the State
Article 1 of the law is about the punishment of the disrupters of the economic system passed in 1369. The disruption in the state monetary and foreign exchange system; disruption in the distribution of the public staples; disruption in manufacturing system; any action with the intent of checking the cultural heritage or national wealth out of the country; accepting big funds as deposit form natural persons or legal persons under the pretext of mudarabah (profit and loss sharing also called PLS or “participatory” banking with venture capital–trans.); and actions with the similar nature which lead to misappropriation of the public property; or disruption in the economic system; and any organized and purposeful action to disrupt the exports of the country are defined as criminal actions. In accordance with Article 2 of the same law, if the perpetrator commits any of the afore-mentioned actions in Article 1, with the intent of harming the Islamic Republic system; or with the intent of fighting with the system; or with the knowledge that these actions are effective in fighting with the system; whereas his actions are to the extent of spreading corruption on earth, the perpetrators is sentenced to death. Otherwise, he is sentenced to prison between 5-20 years. In accordance with Provision 5, Article 2, none of the assumed punishments in this law are suspensible. Neither death penalty nor financial fines or deprivation and permanent suspension of public services are mitigated or reduced.
Homicide
The illegal killing of a person by another person is murder. Homicide is of two types: murder and manslaughter.
Article 300 of the Islamic penal code, volume 3 on qisas is as follows: murder bears qisas punishment; hence death penalty. Whereas the victim dies, the execution of death penalty is carried out upon the request of the victim’s survivals. In accordance with Article 310, whereas a Muslim or Dhimmi or Mustaʾmin or Mu’ahid (historical terms for non-Muslims living permanently or temporarily in an Islamic state with legal protection–trans.) kills a non-Muslim, qisas (capital punishment) is not administered. In accordance with Article 91 of the Islamic penal code passed in 1392, capital punishment has been eliminated for the juveniles (under 18 years old). In charges that bear death penalty including murder, discretionary punishment is deliberated for the juveniles. The article says, “In crimes that bears hadd or qisas, whereas a juvenile under 18 years old does not comprehend the nature of the crime or its illegality; or whereas there is a doubt about their mental maturity; their sentence is deliberated based on the case and their age.
The provision of Article 306 is about the commission of crimes against unborn child: whereas there is a live birth; whereas the criminal action against child happened before the victim’s birth to the extent that it causes a birth defect or death after birth; or his birth defect remains; qisas is certain. Whereas the baby is live born and dies as the result of the commission of the crime; the perpetrator shall be sentenced to death penalty by the request of the baby’s survivals.
Zena/Zina (Extramarital Sex)
Zena literally means the unlawful sexual intimacy with a woman out of wedlock. Technically, it means the sexual intercourse of a man with a woman; whereas the indecent intimacy is inherently haram (forbidden) for him, i.e., it is out of wedlock; an action which is not done by mistake; the woman is not his property (slave). Considering the viewpoints and interpretations of the Islamic jurists and legists, extramarital sex bears death penalty in four cases including “adultery; incest; rape or non-consensual sexual intercourse; and sex of a non-Muslim man with a Muslim woman.”
In volume two of the Islamic penal code, Article 224, extramarital sex lies within hadd punishment; It bears death penalty as in the following cases:
A: Incest.
B: Sex with stepmother that results in the execution of the zani, i.e., the man who initiated the act,
C: Rape or non-consensual sex that results in the execution of the zani, i.e., the man who initiated the act,
D: Sex of a non-Muslim man with a Muslim woman that results in the execution of the zani, i.e., the man who initiated the act.
The provision of Article 224 is as follows: whereas the woman is unconscious, asleep, or drunk; whereas a man does sex with her, without the woman’s consensus; the act is considered rape.
Sodomy and Intercrural Sex
Sodomy means a sexual relationship between two men, regardless of penetration occurs or not. There is a remarkable differentiation between these two situations in the fatwas of the Islamic jurists. In Tahrir al-Wasilah (a book by Ayatollah Khomeini as a commentary on a traditional theological text–trans.), sodomy is defined as the following: “the sexual intimacy of two men– whether via intercourse or other.” Whereas both men are mature; sane; and free, whereas the intimacy does not lead to penetration as in intercrural sex or other forms. Then the hadd (mandatory punishment is 100 lashes for both men, regardless of their marital status.”
Article 234 outlines the punishment for sodomy after defining it in Article 233 of the new Islamic penal code: “Hadd (mandatory punishment) for sodomy is death penalty for the top partner (person who penetrates—trans.); whereas it is a rape; non-consensual; or the man is married. Otherwise, he is sentenced to 100 lashes. The punishment for the bottom partner ([the one upon whom the penetration happens—trans.] regardless of his marital status), is death.”
In accordance with Provision 2 of Article114, whereas extramarital sex and sodomy are enforced, i.e., rape or non-consensual; whereas the perpetrator repents; his sentence—death penalty– is mitigated to the six-degree discretionary punishment in the form of either prison or lashes.
Repeating the Crime
In chapter six of the penal code passed in 1392, there is a clause about repeating the crime: whereas a person perpetrates a crime three times that results in a mandatory punishment, i.e., (hadd); whereas hadd is administered each time that the crime takes place; the sentence for the fourth time will be death, such as homosexuality between women (lesbian–Article 163 of the Islamic penal code). In Tir 1399, in Mashhad, a convict was sentenced to death penalty on the charge of “drinking alcohol for the sixth time.” He was executed on Tir 18, 1399 in the Mashhad central prison.
The Procedure of Administration of Death Penalty
Whereas a lower court sentences the convict to death; the case can be appealed in another court. Whereas the appellate court confirms the lower court’s verdict; the case is sent to the Supreme Court to deliberate on the procedure adopted to implement the hearing process.
Whereas the case is related to murder (qisas); the case is sent to the Supreme Leader for obtaining “permission (estizan).” Currently, the Supreme Leader of Iran is Ayatollah Ali Khamenei. After obtaining the permission, the case is sent to the head of the judiciary branch for the final approval. The judiciary branch is the official administrator of the sentences. Whereas the final approval is obtained; the verdict is sent to the office of administration of sentences.
Whereas the case is contingent on qisas; the victim’s survivals can decide to enforce the verdict or grant pardon to the convict; whereas death penalty is contingent on hadd or ta’zir; the convict can place an appeal of pardon. Whereas pardon is granted by the commission of amnesty and mitigation, the execution of the sentence halts. Otherwise, all the judiciary steps are finalized. The judiciary branch is committed to inform the convict’s lawyer, or in qisas cases the victim’s survivals and the defendant’s lawyer at least 48 hours before the execution of the verdict.
The Supreme Leader, the head of judiciary branch, or in cases that the law has asserted, any judiciary high-ranking officials can request an appeal during any time of the afore-mentioned phases. They can request a retrial and/or a new trial. Until the new trial convenes, the execution of the sentence will be halted.
Death Penalty: Irreparable and Irrevocable
Human rights advocacy institutions believe because of the nature of death penalty, which is irreparable and irrevocable; especially when there is a doubt on the accused person’s charges, capital punishment should be excluded from the list of the available punishments.
In Ordibehesht 97, in Ardabil a prisoner named Babak Rezaei was executed on the charge of murder during an armed robbery. Two years later after his execution, in Aban 98, another prisoner confessed to murder and the armed robbery in this case. Babak Rezaei had denied the charges during his interrogation and in court hearings. However, he was coerced into a compulsory confession against himself during one of his interrogation sessions.
ent might be administered by the natural persons. Capital punishment should not be carried out without court’s verdict, before following full judiciary due process, including formal criminal hearing procedure, and observing the rights of the accused. In the absence of observing hearing and court procedures and process, or the denial of the rights of the suspect (the accused), if the government sanctions death penalty and executes the sentence, this action is called “arbitrary” or “extrajudicial.” The difference between arbitrary execution and murder is that in the first situation, the government by taking advantage of its superiority, hegemony, and authorities vested in it, conspicuously deprives one of the right to life. While in the latter, the person or persons surreptitiously and secretly perpetrate the killing.
Capital punishment, in the laws of the Islamic Republic of Iran, is emanated from the Quran, Sunnah, Islamic laws and Shi’a jurisprudence resources. The death penalty falls under two types of punishments: a) hudud; b) ta’zir. In the case of hadd (singular of hudud, i.e., mandatory punishment–trans.), its quality and quantity are specified by God in the Quran. The judiciary officials and justices have no authorities to change it. Contrary to hadd, there are not any pre-mandated punishments in the case of ta’zir. The punishment is at the discretion and within the authorities of the Islamic government. For instance, death sentences on cases related to the armed conflict falls under hadd. While the death sentences related to drug trafficking falls under ta’zir.
The first time that capital punishment was included in the penal code was on Dey 23, 1304 after it was ratified. The amendment of which (Article 170) as the highest punishment on murder cases on Khordad 7, 1352. After the 57 revolution, the Majlis (the Islamic Consultative Assembly–trans.) ratified the Islamic penal code in 1362. It was to be implemented tentatively with a five-year probation period. Later in Mordad 1370, the same law including general provisions, hudud, qisas (lit: retaliation in kind–trans.), diyat (compensation paid to the heirs of a victim [blood money and ransom] –trans.) was passed by the judicial and legal commission of the Majlis. However, the final bill was ratified by the Expediency Discernment Council because there was a disagreement between Majlis representatives and the Guardian Council concerning this bill (the final ratification of any bill before enforcing it is by the Guardian Council. In case of an unresolved disagreement between Majlis and the Guardian Council, the Expediency Discernment Council arbitrates—trans.). In 1375, the laws of ta’zir and other deterrent punishments were added to the Islamic penal code. Its implementation was extended for another ten years. In Tir, 1383, the newspapers informed that drafting “the law for founding a national institution to defend the rights of citizens” has started. This draft included 8 chapters and 109 articles. According to Article 5 of this law, the death penalty was restricted to very exclusive cases of crimes in compliance with the irrevocable international rules of law.
Finally, to pass an inclusive and comprehensive law, in 1386, the judiciary branch prepared the Islamic penal code bill including the provisions, hudud, qisas, and diyat. The branch sent it to the government for approval. After government passed it, the bill was headed to the Majlis in Azar 1386. After many years of deliberations, the Majlis passed the bill forwarding it to the Guardian Council for final ratification in 1391. The Guardian Council sent it back to the Majlis with some comments to be addressed. Finally, in Dey 1392, the spokesperson for the Guardian Council informed of the final ratification of the law. The implicit elimination of stoning punishment and the obligation of the courts to issue a substitute punishment for the execution of juveniles under 18 years old were among the most important changes in the new law.
Iran has one of the world highest records for the most executions. Therefore, the state is continuously condemned by the UN human rights Council and the General Assembly. A remarkable number of capital punishments are related to drug trafficking cases. These punishments are not derived from hadd. In 1396, to alleviate international pressures because of the high number of executions, the judiciary branch of the Islamic Republic of Iran decided to eliminate death penalty for the suspects of drug trafficking. Then, the Majlis, by amending the law of combatting drug trafficking, eliminated death penalty for the suspects of this crime other than for the kingpins of the drug bands and when there is an armed drug trafficking.
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