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Hossein Taj

The concept of punishment and its types in criminal law, in domestic and international laws, is not a subject of debate and controversy as long as the principle of proportionality between crime and punishment is observed. However, there have been various discussions and different opinions expressed, particularly regarding punishments that deprive individuals of their right to life or bodily integrity, such as execution and retribution.

This article discusses the death penalty in Iran – recent executions – which are based on the principles of Islamic law and their compatibility with domestic and international laws, as well as potential or definite contradictions in their implementation.

It is necessary to mention beforehand that criticism of certain issues does not necessarily involve confirming or denying news, as well as approving or condemning the actions of the perpetrators.

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The death penalty is one of the punishments that has faced theoretical and practical challenges in recent years. Theoretically, scientists like Beccaria in his thesis “Crimes and Punishments” consider this punishment contrary to the social contract theory of Hobbes. The importance of this issue and the need for comprehensive solutions were such that the United Nations General Assembly, with the entry of a new nature into it, on November 20, 1959, commissioned the Economic and Social Council of the United Nations to study the death penalty and its related laws and procedures and examine the consequences and effects of the abolition and retention of the death penalty in the field of criminology. Marc Ancel, a counselor to the French Supreme Court and director of the Applied Law Department in Paris, presented a report on the death penalty (published in 1962). The result of this report showed that the global community’s tendency is towards the abolition of the death penalty and its replacement with imprisonment and rehabilitative measures,

Even though it is inevitable for Iran to be part of the global community, it is noticeable that replacing long imprisonments and heavy punishments with execution in drug-related crimes is necessary.

In the Quran, the taking of life and killing are mentioned as punishments for certain crimes, and killing a combatant and a corruptor on earth is considered necessary. Among them are the following verses:

Surah Ma’ida, verse .

33.:

“Indeed, the only recompense for those who wage war against Allah and His Messenger and strive to spread corruption on earth is that they be killed, or crucified, or have their hands and feet cut off from opposite sides, or be banished from the land.”

Surah Baqarah verses.

178.

“O you who believe, retribution has been prescribed upon you in cases of murder.”

Surah Baqarah, verse .

179: “.

“And there is for you in retribution a life, O people of understanding, that you may become righteous.”

In this verse, another philosophy of execution has been expressed, which is that such punishment is life-giving and leads to the survival of human beings: “And there is life for you in retribution, O people of understanding.”

At the end of the above verse, the creation of piety is also mentioned as another reason for the punishment of execution: “Perhaps you may become pious.”

Some believe that according to Islam, the punishment for spreading rumors with the intention of undermining the Islamic system, betraying it, and collaborating with the enemy is execution, and they refer to verses 60 and 61 of Surah Al-Ahzab.

“If the spenders and those with sickness in their hearts do not cease, and the agitators in the city, we will surely incite you against them, then they will not remain your neighbors except for a little while. Cursed they will be, wherever they are found, they will be seized and killed mercilessly.”

Although these arguments are an unjust attempt based on none of the international laws and even Islam! And of course, these are fundamental principles and the judicial system governing them requires further discussion…

What was mentioned is some examples and instances that have been extracted from the Quran; however, the important and significant issue is that for the implementation of these heavy laws and also for dealing with any accusation or claim, a fair and just court must be established that, with utmost independence and freedom of action, considers the defenses and legal, material, and mental elements of the crime in order to make a decision after obtaining certainty.

Sensitivity and importance of the subject of judgment and recognition of rights and implementation of justice towards “human” in Islam is to the extent that the slightest doubt in a case leads to the acquittal of the accused.

In the narrations attributed to Hazrat Ali (AS), there are multiple statements regarding the implementation of this rule, such as “Repel doubts with boundaries” and “Accept excuses and repel doubts with boundaries”.

The legal principle of “avoiding doubts” in the realm of necessary boundaries is applicable, although in the Islamic penal code, the legislator has also extended it to punishments.

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The importance of this introduction is that in recent days, we have witnessed executions in Iran that have caused various reactions and responses both within Iran and in the international community. From the execution of Mohammad Salas to the three executions on September 8th of this year; three Kurdish youths named Loghman and Zanyar Moradi and Ramin Hossein Panahi. Multiple campaigns were formed to support these young men and prevent the execution of their sentences, but they had no effect on the determination of the judiciary to carry out their executions.

Given the sensitivity of these files, there was limited information available and it is not possible to make a specialized comment; however, it is necessary to mention the following points, all of which could have been used as means to prevent the implementation of the death penalty.

Formation of Court.

Hi, without the presence of media owners.

It is obvious that lack of information and handling in silence and people’s unawareness reduces the volume of criticism and sensitivity towards mistakes. This means that any mistake or shortcoming in the process of handling – whether in form or nature – is far from the view of the public and the authorities. The effect of this flaw is that firstly: the handling authority, under pressures from other institutions, makes decisions without considering public opinion; secondly: by creating a media-free and public opinion-free space and pressure from security institutions, the possibility of making high-level mistakes increases and even the smallest mistake can lead to the death penalty for the accused.

Absence of lawyer during preliminary investigations.

The issue with Article 48 of the Criminal Procedure Law has been raised by lawyers and human rights activists for a long time; although it seems that the head of the judiciary is also opposed to this provision, he has legitimized it by publishing a preliminary list of approved lawyers according to this law.

There is a possibility of some judges not being independent in these cases.

Given that only some branches of the Revolutionary Court have permission to handle these cases with a special order from the head of the judiciary, and unfortunately, despite the provision of Article 48 of the mentioned law which only applies to the preliminary investigation stage, the general lawyers and activists in this field do not have the possibility of being present and accompanying the defendants in the most important part of the proceedings (preliminary investigations at the court), it appears that they are all serving security institutions with ceremonial roles and without independence in action.

Some other issues that may have led to the implementation of these regulations are:

Failure to comply with the Constitution and personal unjust interpretations of the Constitution.

Political and security considerations on the case and the departure from justice that the law has been enacted upon.

Neglecting the necessities of society.

Insistence on uncivilized positions and disregard for scientific advancements.

And so on.

If we consider granting life to be the domain of the most sacred essence, we must also recognize taking it to be attributed to Him.

In ideological and religious systems of government, rulers consider themselves representatives or executors of God’s command, and each of these systems has various tools and methods to enforce their religious beliefs. In our country, which is based on the Islamic religion, heavy punishments have been prescribed for opponents and dissenters of the system. After the victory of the Islamic Revolution, heavy punishments such as execution have been carried out against those who are deemed as enemies and corrupters of the earth, and have faced heavy criticism.

Regardless of the fact that all political systems have made provisions and guarantees for their own survival and enforce them with determination, the Islamic Republic of Iran, with the support of Islam and its adherence to religious law, implements these guarantees.

Regarding the recent executions, the judicial system has sentenced three Kurdish youths to death on charges of “waging war” and “rebellion”. As mentioned in the introduction, these charges are punishable by law and have been included in the Islamic Penal Code. The judiciary can put an end to the public’s questions by clarifying and addressing them, and of course, the silence and lack of information given to lawyers and informed individuals only leads to more questions in the minds of the people.

It has been many years that activists and intellectuals have been striving to reform and update laws derived from religion and adapt them to the current conditions of society and the world. This has had some effects in the field of civil law and punishments for drug-related crimes, but no changes have been accepted in the divine realm. Although these principles and sources have the capacity to interpret and cover a wide range of violations, it seems that in the current situation, the insistence and determination to not implement these laws not only puts human lives at risk, but also undermines the credibility of the system on an international level and points the finger of blame towards the human rights organizations and international bodies. Although the recent mistake is insignificant compared to the initial error of taking human lives.

One of the primary pillars of legitimacy for all political systems is the satisfaction of the people and the nation. One way to achieve this satisfaction is by increasing public trust in the judicial system, which should be a refuge for the oppressed. If the judiciary enforces advanced laws that are in line with the current conditions and needs of society, it will undoubtedly be a source of refuge for the people. In the face of all criticisms and shortcomings, it should strive for transparency and accountability instead of resorting to arbitrary and oppressive measures. This will enable it to regain the ability to gain the trust of the public once again.

Therefore, it seems that the issue of capital punishment in the Iranian criminal justice system requires special attention from lawyers and politicians; because progress in the field of law has a direct relationship with social and political events and phenomena.