Following a meeting on January 18, 2011, the Guardian Council ratified the final text of the new Islamic Penal Code and did not find any part of this code to be in contravention of Islamic Sharia law and the Iranian Constitution. Passage of this code renders the former penal Code ineffective, providing the new and more severe code as replacement.
Prior to this and on multiple occasions, Justice For Iran and other monitoring and human rights organizations had expressed their concerns and reservations regarding the text of the new Code and yet, the Islamic Republic paid no mind to any of the said concerns.
Justice For Iran’s most serious concerns were:
1- In the former Code, any form of sexual relations out of wedlock is a crime; sexual extramarital affair of men and women will carry the punishment of stoning. In the new Code, the articles pertaining to the punishment of stoning (rajm) and all details of the manner of execution of this punishment has been omitted from the section. However, any form of sexual relations out of wedlock is still a crime. In other words, although the new Code considers sexual relations that take place out of wedlock to be a crime for both men and women, it does not prescribe a punishment for this crime. Initially, the omission of stoning from the Penal Code appears to be a positive development. But careful inspection of article 167 proves otherwise and affirms our concern. This article which stands opposed to the principle of legality of crimes and punishments, recognized in all valid legal systems, prescribes: “The judge is duty bound to make all efforts to find the proper sentence in the codified laws. If he fails to do so he should issued the sentence in accordance with the valid Islamic sources or valid fatawi. The judge cannot use the absence or insufficiency or brevity or conflict of the codified laws as excuse to refuse to issue a verdict.” Although stoning was omitted from the section under zena—adultery, it is mentioned in other sections such as under articles 172 and 198 which further emphasizes the severity of our concern. In other words, the new codification means that stoning is omitted from the Penal Code as a form of punishment. However, the judges will be free to refer to the Shari’a based fatwas for issuing a sentence of stoning and prescribing the manners in which it would be carried out.
2- Now that the new Code, the punishment of execution will no longer be issued for minors who were charged with certain crimes, such as smuggling narcotics. However, it is still very likely that individuals under the age of 18 who have committed murder will be sentenced to execution. Based on the new Code, minors will only be exempt from execution if they can prove that they do not have the mental capacity to understand the nature or prohibition of their actions.
3- Multiple articles in the new Code are concerned with increasing the severity of punishments for people charged with “action against national security.” This is while presently almost all of the political prisoners and prisoners of conscience have been accused of “actions against national security” due to their activities in the fields of human rights, civil society, journalism, defending the rights of the minorities, or even for being a member of the Baha’i community. For example, under the new Code, the punishments issued for individuals who have been sentenced to imprisonment or lashing for “actions against national security” can in no way be suspended or subject to a statute of limitation.
4- Although the Iranian and international community, in particular human rights activists and women’s rights movement as well as many governmental and non-governmental organizations such as the United Nations, The European Union, Amnesty International and others expressed multitudes of complaints and concerns regarding the many instances of sexual discrimination as well as the cruel and inhumane punishments, those who ratified this Code made no attempts to reform the following concerns:
– Value of a woman’s testimony is half that of a man. According to the new Code, as in the old one, the testimony of two women is worth that of one man.
– A nine year old girl continues to have criminal responsibility and if she were to commit a crime, she will be dealt with as an adult. This is while the age of criminal responsibility for boys is 15 years.
– The value of physical harms inflicted (diya) for one woman is half that of a man. Further,diya of non-Muslims is half that of the Muslims. Based on this law, if a Christian, Jewish, or Zoroastrian woman loses her leg in an automobile accident, the amount of the monetary damages awarded to her will be a quarter of that awarded to a Muslim man in the same circumstances.
– Further, violent and inhumane punishments such as dismemberment as punishment for crimes such as theft or muharibih or as a form of retribution are prescribed within the new Code.
– In the new Islamic Penal Code, sexual relations between two individuals of the same sex continue to be a crime and subject to punishments anywhere from one hundred lashes to execution.
The new Islamic Penal Code is passed at a time when the Iranian citizens are battling economic issues on a daily basis and the civil society, under pressure of further repression, is incapable of reacting on, speaking about or protesting social and political developments. Under present conditions, there is a threat of passage of laws that have been so far put on the back burner due to the overwhelming protests and concern of the civil society, furthering the institutionalization of human rights violation in Iran. Justice For Iran, while directing the attention of the international community to the worsening of the human rights situation in Iran as a result of the passage of the new Islamic Penal Code, warns of further and imminent deterioration of the basic rights of labourers and women in Iran with the passage of bills such as the Family Protection Bill and Bill for Improving Labour Law.