“From ancient times, in various schools of criminal law, the discussion of methods of punishment has been controversial. How should we punish a criminal who disrupts social order and stability? And what should be the result of this punishment?”

The late Dr. Naser Katouzian, the undisputed master of Iranian law, in the later years of his life, introduces law as a historical residue of ethics in his very interesting articles. He emphasizes that the purpose of law and rights is to preserve the morals and virtues of society, not to seek revenge from individuals and govern over criminals!

A society is made up of various groups, which are formed by individuals. The foundation and sustainability of society is based on the behavior of its members. Society requires order and security, and in order to maintain social order and regulate relationships between individuals, rules and regulations are necessary. According to Jean-Jacques Rousseau, each member of society willingly gives up certain personal and social freedoms in order to live a comfortable and worry-free social life and fulfill their needs. They must adhere to these rules and regulations in order to continue living as a group.

Any behavior that violates social order and harms social life is recognized as a crime by society and is subject to punishment. Punishment also follows rules and regulations. Punishment must be proportional to the criminal act and in accordance with the personality and degree of guilt of the offender.

Every criminal has a unique spiritual state. Therefore, the circumstances of committing a crime are different for each individual. In such a way that two criminals may only have similarities in committing the criminal act.

In the past, it was believed that defending society was only possible through harsh punishments and resorting to violence, and it was thought that punishment, especially severe punishment, could prevent crime on its own. However, we must know that today, the era of these oppressive punishments has come to an end.

The purpose of this writing is to examine the possibility of abolishing the death penalty in the book of Islamic Penal Code of Iran.

1- Today’s penal system.

Today’s criminal system is pursuing goals that are completely different from the traditional criminal system. The modern criminal system sees the support of society for individuals as a necessity and aims to find alternatives to punishment. Criminal law is forced to adhere to a correct criminal policy in order to be successful. This is because maintaining security is always at the forefront of the executive programs of the governing body and relies on two important and general principles; one is to preserve the principles of the classic criminal system, which means drafting criminal laws and punishing criminals, and the other is to implement specific social programs to eliminate crime-causing factors and, in short, all the tools that can better ensure social justice. In line with this idea, the legislator has taken steps towards the development of Islamic punishments, considering all the circumstances and conditions that are involved in achieving this ideal.

The legislator has considered all actions as crimes and has prescribed punishments for them, ranging from minimum to maximum. Alongside this rule, the legislator has empowered the judge to deviate from even the minimum punishment in certain circumstances and to mitigate it.

However, this may seem to violate the purpose. Perhaps the legislator could have considered a lower limit for punishment. But we must see what goal this criminal policy is pursuing? Better justice, rehabilitation of the criminal, social necessity, the privacy of the act or the perpetrator, the inability of the legislator to predict all situations, circumstances and determine the punishment for each of them, the judge’s interference and influence and his conscience in determining the unfairness of the punishment, etc., can justify the existence of this rule.

1-1- Proportionality of Punishment and Crime.

The idea of matching punishment with crime was first raised as a result of practical flaws in the implementation of laws derived from classical theories, and gained momentum with the emergence of neoclassical theories. Supporters of this way of thinking criticized classical theories, which considered fixed and non-negotiable punishments as the best form of punishment for offenders, and saw it as the best way to administer justice. They declared that the only common factor among criminals is their criminal act and there is no other similarity between them. Therefore, in determining punishment, the criminal’s state of mind, circumstances, and motives must be taken into consideration.

In recent years, there has been a change in the way we think about criminal justice, particularly in regards to the focus on the criminal as an individual who has been subjected to complex social and personal pressures. This has led to a shift in attention towards the criminal as a human being in need of assistance and guidance. Many criminals, often without their own conscious intention, find themselves on a path of criminal behavior. This has caused the monster that has been created and perpetuated for centuries to transform.

2-1- Criminal Law Duties.

However, the role of criminal justice is to identify behaviors that should be considered criminal and to work towards reducing such actions. Nevertheless, there are significant limitations in this process.

The first limitation is that in a civilized society, harsh and brutal punishments must be recognized as unacceptable. This is especially true for physical punishments. Societies that resort to clear and controlled violence against criminals only diminish themselves to the level of those criminals. Violence should not be met with violence, as this is only a display of power and goes against the moral and legal claims of criminal justice. The second limitation and problem relates to how punishments are divided. Criminal justice must be carried out in a fair and just manner, in order to gain public respect. This means that the act must be recognized as a crime and the structure and definitions of criminal law and the scope and severity of punishments must be accepted by the majority of people. No punishment should be determined or imposed unless it is deserved.

Therefore, in criminal law, the pursuit of objectives is aimed at the implementation of punishments, and among them, the goal of reforming and educating criminals, ensuring justice, determining appropriate punishments, and preventing the occurrence of other crimes is of great importance. One of the ways to achieve this goal is also the proportionality of punishment with the circumstances of the commission and the personality of the criminals, and the application of mitigating factors towards achieving this goal.

“من به تو اعتماد دارم”

“I trust you.”

Opposition’s argument against the death penalty.

1- “من به دنبال یک ماشین جدید هستم”

I am looking for a new car. “سلام دوستان”

“Hello friends”

Contradiction with human feelings of friendship.

One of the main reasons for opponents of execution is an ethical one, as some, relying on moral teachings, condemn and criticize violence and come to the conclusion that violence against violence is not justifiable. Execution goes against the humanistic and civilized spirit of today, which considers the right to life as sacred for all humans.

On the other hand, some refer to the Declaration of Human Rights and say: According to Articles 3 and 5 of the aforementioned declaration, the death penalty is a violation of fundamental human rights.

2-. دو

2. Two

Non-inhibitory and non-intimidating.

One of the controversial issues surrounding the death penalty is whether it serves as a deterrent or not. Opponents of the death penalty rely on certain statistics that suggest that abolishing the death penalty has not resulted in a change in crime rates, and therefore conclude that it is not a deterrent. In this view, imprisonment becomes a substitute for execution.

3-. Three. “من به دنبال یک کار جدید هستم”

I am looking for a new job.

Creating a sense of revenge and promoting it in society and individuals.

One of the flaws that is taken into consideration in the punishment of execution is the creation of a sense of revenge and its promotion in society and the individual. Opponents of execution condemn this characteristic morally. In this regard, the Islamic initiative seems very prudent; because in executions that take place in the face of crimes such as deliberate murder, theft for the fourth time, and the like, the presence of a private complainant can be seen prominently and this presence has its own advantages; including the fact that: in the presence of a private complainant, the sense of revenge is aroused and he becomes the seeker of the criminal’s punishment. Therefore, the attention of the Islamic legislator to his sense of revenge and giving a role to the complainant prevents him from acting on his own and as a result, prevents the abnormality and disorder caused by the self-acting of the aggrieved in extinguishing their own anger. And as a result, since the aggrieved sees that he plays a fundamental

4- “من به شما اعتماد دارم”

I trust you.

Tolerance of criminal trials.

The fourth issue of opponents of execution refers to the fallibility of criminal trials. Many of the condemned were later recognized as innocent, sometimes just minutes before the execution. Some were even killed before their innocence could be proven, and for them, there is no way to rectify the mistake. This has often occurred in cases where new technology, especially DNA testing, was not utilized. Since 1973, 119 innocent individuals have been declared in 25 states in America and left behind the burden of death.

5- “من اینجا می‌روم”

“I am going from here.”

There is no minimum or maximum punishment for execution.

There are other concerns raised by opponents of the death penalty. According to their belief, this punishment is not adjustable and cannot be reduced or increased in proportion to the severity of the crime, while other punishments such as imprisonment have this capacity and can be increased based on the severity of the crime. According to the principle of personal punishment and the principle of proportionality between crime and punishment, the level of punishment must have a minimum and maximum degree.

“من از شما متشکرم”

I am grateful to you.

The death penalty is included in the Islamic Penal Code of Iran.

The Islamic Penal Code of Iran consists of 5 books: General Principles, Hudud, Qisas, Diyat, and Ta’zirat and Deterrent Punishments. Hudud are punishments that are determined by Sharia for specific crimes and cannot be changed. Qisas means retribution, which is determined by Sharia for intentional crimes, including murder and physical harm. Diyat, which is the sum of blood money, is a monetary amount determined by Sharia for unintentional crimes or in cases where Qisas is not applicable. Ta’zir is for crimes that do not have a specific punishment determined by Sharia. The latest amendments to this law were approved in May 2013 and the law is still in a 5-year trial period; however, the book on Ta’zirat is permanent.

In the book of punishments, execution is considered for intentional crimes, mainly drug offenses. But can the death penalty be considered in punishment?

“من از تو متشکرم”

I am grateful to you.

Investigation of Capital Punishment for Drug Crimes.

Regarding the possibility of determining the death penalty by the legislature for drug-related crimes, there is doubt and some believe that the death penalty cannot be considered for all punitive and deterrent crimes. To clarify the discussion, it is better to first examine the nature of drug-related crimes in terms of punitive or deterrent or limited, and then express the existing opinions in this regard.

In general, there are opinions about the nature of the death penalty in drug-related crimes as follows:

1- “سلام، من امیر هستم.”
1- “Hello, I am Amir.” “من از شما متشکرم”

I am grateful to you.  

“From the perspective of corruption in the land, there are limits.”

Since there are no suspended borders, they are also non-negotiable. Therefore, the death penalty cannot be applied in drug-related crimes. This theory may be documented in verse 32 of Surah Al-Ma’idah. This verse remains silent on the worldly punishment for those who cause corruption on earth but are not combatants. It is used from a noble verse that the ruling of these punishments is based on combat and corruption on earth (someone who intends to create fear among people and cause corruption with weapons or similar means). In other words, the subject of the ruling is combat and corruption on earth, and these two concepts are inseparable.

Just this verse cannot be the criterion and measure for fatwas, because corruption has a broad meaning and corruption on earth, for which execution is permitted in this surah, cannot be the source of extensive cases in the Quran. It is necessary for Islamic jurisprudence to consider that not all of the mentioned matters are deserving of execution and killing, but rather the cases in which corruption on earth is a justification for killing are creating insecurity towards people’s lives, honor, and property, and fighting against the Islamic government in order to overthrow or weaken it and prevent the implementation of sacred Islamic laws. Therefore, according to this view, it cannot be considered a crime deserving of execution to engage in smuggling.

4-2.
Four minus two.

It is for the sake of punishment and negotiable.

This opinion has been expressed by the Legal Department of the Judiciary in theory number 2398/7 dated 12/5/1370. According to this opinion, the punishments approved by the Expediency Discernment Council are considered as disciplinary measures and the use of penal laws in them is not problematic. Therefore, based on this article, the judge of the court can sentence the defendant to a punishment less than the minimum prescribed by the law unless it is explicitly prohibited. Currently, the reduction of punishment for the death penalty in the disciplinary measures of combating drugs has been mentioned.

Four minus three.

It is from the chapter of the rules of the Sultanate.

Considering that corruption in society, such as drug trafficking and the like, poses a threat to both the community and the government, it is the duty of the ruler to deal with such elements. If they belong to armed groups, they are subject to combat, otherwise they will be punished. If punishment is not effective and the Islamic ruler deems it necessary to execute a few individuals, it will be carried out by the ruler’s order.

If other methods such as imprisonment and torture can remove crisis and danger from the Islamic society, execution is not permissible. However, if the distribution of heroin and the formation of a distribution network undoubtedly causes a crisis among the younger generation and undermines the foundation of the government, in this case the ruler can make a different decision. Considering the secondary laws and the wide powers of the Islamic ruler, the position of the Supreme Leader can authorize the punishment of execution for monopolists and unarmed smugglers in cases of necessity and in a specific period.

Utilizing recent theories and various materials of Islamic criminal law, which consider the presence of a legal sanctity as necessary for a crime to be considered punishable, and deem deterrent crimes as those that the government considers in the best interest of society, drug offenses can be classified as deterrent crimes.

With these characteristics, the Supreme Judicial Council has deemed in circulars dated ۱۶/۹/۱۳۶۷, number ۴۳۳۸۳/۱, to all criminal courts, prosecution offices, and branches of the Supreme Revolutionary Court and branches of the Supreme Court, that the death penalty for drug offenses is only appropriate and in accordance with Islamic standards when the criminal activity is severe enough to be considered as corruption on earth or causing harm to society.

Some jurists have criticized the use of the death penalty in the criminal justice system for drug-related offenses and say: Now we must answer this question, can the government arbitrarily impose the death penalty in any case? It seems that Article 9 of the Constitution has provided the answer to this question.

According to Article 9 of the Constitution, even for the sake of preserving the independence and territorial integrity of the country, the legitimate rights and freedoms of individuals can be restricted.

It may be said in response that if principle 9 is considered from this perspective, criminalization and punishment in other cases or to this extent regarding drugs is also in conflict with the aforementioned principle.

In response, it must be said that although the government has the right to establish order in society and determine punishment as a guardian, Article 9 of the Constitution cannot prevent prosecution and punishment, but it prohibits frivolous prosecutions or severe punishments.

The ninth principle of the constitution states that the government does not have absolute freedom in determining punishments. One of the most important rights of individuals is the right to life, and this right cannot be taken away without the possibility of appeal for the convicted person.

In order to maintain order in society and prevent crime, it is not possible to impose any punishment on individuals. The government must take into account social realities when determining punishment. First, the root causes of crime must be eliminated and then efforts can be made to punish individuals.

It is not possible to sacrifice the immense material and human resources of this country under the pretext of fighting drug trafficking. The solution is to look at the phenomenon of drugs like other phenomena and avoid giving it special attention. We should see how much the government has invested in preventing other crimes such as theft and fraud, and how much effort has been made in combating drug crimes! On the other hand, the government should evaluate the executions related to the fight against drug trafficking to determine whether or not they have had an impact on preventing crime.

It is necessary to pay attention to this point that although determining the crime and its punishment is the responsibility of the legislative body, based on the social harm it causes, it seems that the determination of the death penalty is facing serious doubts according to Article 9 of the Constitution.

According to the aforementioned principle, even in the name of preserving the independence and territorial integrity of the country, it is not permissible to deprive individuals of their legitimate rights and freedoms. It may be argued that someone who acts against the law can have their rights and freedoms taken away, but in this case, their rights and freedoms are not legitimate as they are in conflict with the fundamental law.

In response, it must be said that from the perspective of the constitution, individual rights and freedoms, including the right to life, are so important that the constitutional legislator has placed them above independence and territorial integrity of the country, even in higher ranks. Because it is these individual rights and freedoms that limit independence and territorial integrity, not the other way around.

The right to life is always legitimate and there is no case where depriving someone of their right to life is considered legitimate. In other words, legitimacy does not come from the legislator to be deemed illegitimate, but rather the legitimacy of life is inherent in the humanity of a person and is an essential part of their humanity.

“من در میانهٔ این دو جهان هستم”

“I am in the middle of these two worlds.”

The principle of punishment without limits.

The main principle that is used in the rule of punishment and is referred to by jurists in their own words with different interpretations; this principle is that punishment includes all immoral actions that are not explicitly punished in the Quran and Sunnah, therefore jurists believe that the amount of punishment should be less than the limit; for this reason, the amount of punishment with a whip should be less than ninety-nine lashes.

Therefore, from the content of the punishments determined by the Sharia, it can be inferred that in ta’zir punishments, the death penalty does not exist. Because in some cases, the death penalty is the highest form of punishment and according to the principle of ta’zir, it is not appropriate for the Islamic penal code to include the death penalty in the ta’zir section.

“من از تو بیشتر میخواهم”

I want more from you.

Last word.

Drug addiction is a problem that even execution has not been able to prevent; now the debate among some experts in this field has become a dilemma. On the other hand, the death penalty is not one of the cases that we want to examine based on Islamic law, because there are no references to the issue of drugs in the law.

Currently, a law is being reviewed in the Islamic Consultative Assembly that, if passed, will limit the death penalty for drug offenses.

Crimes related to drugs, whether they are related to the process of trafficking and supply or consumption and addiction, are not crimes or sins that have specific boundaries and limits in Islamic jurisprudence and laws. The legislator can, based on the characteristics of the offender, national and international conditions, the circumstances of the time, and the values of social culture, impose preventive and deterrent punishments, even based on restorative justice, in order to reform the criminal and serve as a lesson for others. For example, in the case of someone who carries more than thirty grams of heroin, no specific punishment is prescribed in any of the sources of fatwa (book, tradition, reason, and consensus), and the legislator is not obligated to impose the death penalty. As mentioned, punishments for such crimes should be determined and implemented based on the extent of the negative consequences and damages to health, morality, economy, society, environment, etc.

Some sources:

1- Sanai, Parviz, Public Criminal Law, Volume 1, Majd Publishing, 1379.

2- Validi, Mohammad Saleh, Public Criminal Law Vol. 1, Ganj-e Danesh Publications, 1388.

4- Mustafa, the groom’s investigator, Islamic jurisprudence rules, Tehran, Center for Islamic Sciences Publications.

5- Mir Mohammad Sadeghi, Hossein, International Criminal Law, Tehran, Mizan Publishing.

6- Ardabili, Mohammad Ali, Public Criminal Law, 3 volumes, Tehran, Mizan Publishing.

7- Mousavi Bijanourdi, Mohammad, Comparative Jurisprudence, Tehran, Miad Publishing.

8- Marashi, Mohammad Hossein, New Perspectives on Islamic Criminal Law, Tehran, Mizan Publishing.

9- Second Martyr, Description of the Glitter, translated by Dr. Ali Shervani, 14 volumes, Tehran, Darolfekr Publications.

10- Goldozian, Iraj, Mahshay-e Qanun-e Majazat-e Eslami, Tehran, Nashr-e Majd.

10- Goldoziyan, Iraj, Mahshay-e Qanun-e Majazat-e Eslami, Tehran, Majd Publishing.