Emad Baghi’s Letter to the Judiciary

Letter to the Iranian Judiciary on the Suspension and Abolition of the Death Penalty
The Honorable Ayatollah Hashemi Shahroudi,
Chief of the Judiciary
Islamic Republic of Iran

The Honorable Judiciary Committee
Majles Shuraye Eslami
Islamic Republic of Iran

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In recent years Iran has continuously been among the top three countries in the world with the highest number of executions. As a rule, the members of the judiciary and the legal system cannot be pleased with such high numbers. Examples of such unhappiness are reflected in the words of various judicial officials. For instance, in the execution of 10 people held in Evin prison, the head of Tehran’s criminal court said, “the court tried its best to get the consent of the next of kin but they were not willing to show mercy.” He expressed regret regarding the committed crimes but also the executions, stating “in the hope for the day we no longer have incidents that despite our desire and because of our legal responsibility we are forced to witness the execution of an accused.” (Iran, 20 April 1385). Along the same lines, the deputy public prosecutor said, “We have always recommended forgiveness to the next of kin.” (E’temad, 20 April 2006). However, mere lack of desire is not sufficient and immediate action in this regard is both necessary and warranted. Crime, felony, and executions are the results of and contributors to a culture of violence. There is a need to: 1) mobilize the mass media in order to cure this culture of violence; 2) strengthen active civil and non-governmental institution in this area; and 3) offer laws that can remedy the situation. In what follows the focus will be on laws.
Among the executions issued in the past year approximately 64 percent consisted of qessas or retribution sentences. In other words, the handed sentences relate to persons who have committed murder and have private plaintiffs. We will not deal with the topic of mercy recommendations and ways to implement them in order to prevent the increasing number of executions. Our intent here is to suggest:

1. Executions and laws of retribution are two distinct subjects and since executions are promulgated by the state, the unpleasant statistic of executions can be reduced through the adjustment of laws and change of the death penalty into prison sentences. Political executions or executions for crimes such as smuggling and sale of illicit drugs have nothing to do with religious canon and can be nullified without any discussion.

2. In the case of retribution which has a private plaintiff, on the basis of a decision by religious leaders (fuqaha), the handed decision can be conditioned by the opinion of legal experts, sociologists, and psychologists. This should be particularly so in the case of crimes committed due to the ill or anti-social character of individuals who are themselves the result of unsuitable social and economic conditions or incorrect social management. Such individuals are more victims than criminals. In Articles 83 and 84 of the Penal Code approved in 1999, the opinion of the local investigator and examiner is considered a condition. In the Article 1 of Iran’s Civil Code the presence of experts on the side of a judge is again considered a condition. Article 27 of the Regulation for the Implementation of the Death Penalty, Stoning, and Amputations also deems the presence of a physician necessary for the discernment and implementation of some of the articles of the Civil Code. Therefore, the conditioning of a sentence to the opinion of a group of lawyers, sociologists, and psychologist should not be considered out of place.

3. In religious canon much importance is given to respect for the soul, to the point that on the basis of the principle of “in case of the least doubt” punishment should be suspended.

4. Given that there have been many mistakes in the judgments rendered in the death penalty cases, it is necessary to make the presence of the jury required in criminal courts. The most important reason is the priority and establishment of the principle of caution is such sentences. “According to Shaykh Toussi, “it is suitable that in a judgment proceedings scholarly judges from the Shi’i sect and one person from each of the other sects should be present so that if there is an incident and there is a need to ask a question regarding a subject they can give an answer to the judge and offer their reason. If they are present in the court proceedings, the advice and opinion of these individuals should be sought and if they are not there, they should be called to attend and if they rendered a decision that was in agreement with the righteous sect no one can oppose.” This view of Shaykh Toussi which has made the judge’s decision dependent on the opinion of a collective of experts and sees their presence in the court as necessary is not considered a denial of the independence of the judge. Why is it that in some crimes the presence of the jury is accepted while in this important matter towards which religious scholars have always spoken of using caution we should not accept the presence of jury? Undoubtedly prudence and preparation of the kind described above can lead to the reduction of the death penalty since the private plaintiff insistent on revenge will also be faced with public opinion and not merely the state.

5. Most importantly is that the law of retribution is always dependent on making sure that a person with intent and prior plan causes the death of an innocent person.

Shari’a

The criteria that the majority of religious scholars such as Mohaqeq Helli, Mohammad Hassan Najafi in Javaher, and Ayatollah Khomeini in Tahrir al-Vasileh have discussed is that the criminal in committing a crime should have both the intent of the crime and intent of the result. The tool that is used must also be deadly. Although retribution is a principal punishment but: 1) it is not definite and can be invalidated through a change to financial compensation or even amnesty; 2) despite the importance it has the Lord has given the responsibility of making the decision to the next of kin so as to prevent hidden revenge, murder, and terror in society . However He has announced his opinion in the following manner: “Whoever shows mercy in retribution, that will constitute the atonement of his sins.” (al-Maidah 45). In another verse it is said, “if one is pardoned by the victim’s kin, an appreciative response is in order, and an equitable compensation shall be paid. This is an alleviation from your Lord and mercy.” (al-Baqarah 178). In another verse that is one of the main references of retribution, it is said “the guerdon of an ill deed is an ill the like thereof. But whosoever pardons and amends, his wage is the affair of God” (Ash Shura 40) and “whoever saves the life of one, it shall be as if he had saved the life of all mankind. Our messengers came unto them of old with clear proofs (of Allah ‘ s sovereignty ) , but afterwards lo! many of them became prodigals in the earth. (al-Maidah 32).

Therefore, the government can suspend its own punishment decree. It can also encourage the society towards mercy and self-control as a means to please God. It can further support institutions that are active in this regard. The fact that religious scholars require the permission of the government for the implementation of retribution reflects the responsibility the government has and the need for it not to be indifferent to whatever is done by the next to kin. According to verse 184 of al-Baqarah, the philosophy of retribution is life. According to various interpreters the meaning here is that through such a punishment the murder of innocents will be prevented. Hence if the philosophy and objective of retribution is prevention of murder, and experience shows that the death penalty has not been able to prevent crime and murder, then this punishment must be abrogated and we should be after other means for the realization of the philosophy of punishment regarding intentional murder. The Qur’an itself has paved the path by hinting at alternative punishments such as monetary fines (diya) or amnesty.

One of the problems in Iran is that according to current law if the next of kin agrees to monetary fines or even pardon, the murderer can be released from prison unless the court from the point of view of public interest imposes limited imprisonment. It is possible that this approach may embolden the person found guilty and cause insecurity in the society. The point of this writing is not to encourage amnesty for the person found guilty rather to argue that, like in other crimes, retribution can also be turned into a monetary fine or on the basis of the judgment of the court or next of kin the monetary fine can be turned into imprisonment for life so that the person found guilty does not flee justice.

The point is that al-Baqarah confirms waiving retribution if statistics and numbers show that the philosophy behind the death penalty has not been fulfilled. Since the main logic is the guarantee of life, any other means that can lead to fulfillment of this objective will be preferable even if it means the invalidation of the death penalty and its replacement with imprisonment, fines, or amnesty. In case a rational person is found guilt for intentional murder of an innocent human being, the next of kin among the three choices of retribution, fines, and mercy can choose one. However, on the basis of reasons that will be explained below, in case of the choice of retribution the decision of the next of kin is the necessary but not sufficient condition.

Sura 32 of al-Maidah says he who murders another without the right of retribution or without any immorality having been committed it is as though he has killed a whole people. And whoever saves a life it is as though he has given life to a people. Here while explaining the depth of a crime, the second part emphasizes the value of giving and not taking life. If the first past of the sura shows the philosophy behind the law of retribution, the second part in effect expresses the philosophy of practicing mercy and restraint in retribution, which is seen as the prevention of the death of even one person (which is interpreted as the killing of all humanity). And this responsibility does not rest only on people but also on the state as well.

Law

The Law of Islamic Punishment notes the permission of the ruler in retribution in three articles (205, 219, and 265). Also in Article 42 it has not found the intent to murder to be worthy of punishment while in Article 206 it considers the intent to murder in case of an actual murder to be necessary for the verdict of an intentional murder.

At the same time, the Law of Islamic Punishment, despite offering precise and flexible commands which can provide the opportunity for more appropriate understanding and interpretation (ijtihad) that can guarantee more humane regulations, quickly passes over such an important topic that deals with human life through a few short, general, and ambiguous articles. What was previously said about the law of retribution concerns a situation in which an intentional murder of an innocent person has occurred with prior intent and plan. This is while 25 percent of retribution sentences and death penalties are regarding murders that do not have the above-mentioned characteristics. In other words, those convicted are those who until the moment the murder occurred did not know the victim nor did they have intent to murder. Murder occurred spontaneously due to a fight or sudden rise of anger. The character of some of the convicted is also not criminal in so far as prior to the crime and under normal circumstances they could not bear the thought of killing even a bird. Hence the murder was not with intent and plan and logically and on the basis of religious law, it should not fall within the framework of law of retribution. Of course there should be punishment but not capital punishment. If indeed an execution occurs in this case, one could say that a murder has occurred in the hands of a state and a person has faced a punishment higher than deserved.

Some Examples

1. A man who killed his wife after a verbal altercation was sentenced to retribution. In the court he said that he loved his wife and life. “Soheila and I had been married for seven years and throughout these years we had no problems. Only recently because of financial difficulties we had a few altercations. The morning of the incident I got home. After seeing me Soheila began yelling and cursing about why I had come home so late. I became angry and slapped her face. She fell to the ground and was still yelling. I picked up a kitchen knife to scare her but do not know what happened (Hamshahri and Iran 10 March 2006).

2. The 25-year old Adel had gone for pilgrimage to Abdulazim mosque with his wife and child. In return, because it was late, he rented a cab. As he approached his house he entered into an argument with the cab driver over the fare. The driver cursed at him and Adel got angry since it was in front of his family. He attacked the driver with a knife. Adel is sentenced to retribution. (E’temad Melli, 10 March 2006).

3. In the spring of 2005 it was reported to security forces that a young man by the name of Hamid due to physical altercation with another young man by the name of Mohammad had been injured and ultimately died. In the court Mohammad mentioned that he was supposed to meet with his ex-wife so that they could discuss the possibility of renewing their common life. “When I got there, I saw that a few people were causing trouble for my wife. I pulled my car in front of my wife’s car and was yet to disembark that Hamid attacked me rapidly. I took out a covered knife that I had under the car seat to scare Hamid and prevent his attack. In five second we were engaged in a fight and suddenly I saw that blood was coming out of Hamid’s shoulder. I dropped the knife that was still in cover and ran away.” In fact, the divorced wife had come to the scene with the other man (Hamid) and that man, under the influence of the woman, had thought that Mohammad Taheri (the previous husband) was about to bother his new girl friend and that is why he attacked Mohammad. After the completion of the case the representative of the prosecutor clearly states: “I doubt that the knife was taken out of its cover while hitting the victim. It seems to me that the accused is telling the truth about not taking the knife out of cover.” Mohammad Taheri says, “ I took out the knife with the cover with the intent to scare the deceased and the injury was caused during the altercation. I don’t know how the covered blade caused the injury as I had no intent to injure.” The file was finally reviewed in the provincial criminal court and the minority opinion that the knife in cover could not be considered an instrument of murder and the murder was unintentional was rejected. The majority opinion was that it was an instrument of murder and a judgment of retribution based on intentional murder was issued. Upon appeal the case went to the Supreme Court and the decision was that “the accused and his lawyers claim that the accused did not have the intent to kill and the knife was not taken out of cover. Hence it can be deduced that it was not intentional murder. However, in reference to Article 206 the act of the accused led to murder even if the knife was in cover and there was no intent. This is an irrelevant argument since the knife and the action of the accused was a heavy blow with the knife which led to injury and such acts do lead to murder. Hence the majority opinion holds the intentionality of the murder and issues a retribution judgment.” This decision was rendered despite the fact that there is really no other reason for knife covers but covering the blade in order to prevent it from injuring. No other interpretation is logical since without such an interpretation there would be no distinction between a bare knife and a covered one. However, the main issue in such decisions should not be the instrument of murder but the fact that the murder occurred not out of pure criminality and intention but as accident and hence should not fall under the jurisdiction of the law of retribution.

Judicial Process

In the past years, even if there was prior intent to murder and there was little doubt that the instrument used was an instrument of murder, a statement by the accused that he did not intend to murder and he merely wanted to scare has been accepted by the court. An example of this was seen in the trial of Saeed Askar who shot Saeed Hajjarian with a gun and placed him in coma for a few weeks with a high possibility of death. Another example was the murder of a police officer by Mohsen Fallahian with an unlicensed gun. In the latter case, the claim that the murder was not intentional was accepted and the convicted person was neither faced with retribution nor even imprisonment.

The sentence rendered for the convicts of the serial killings in Kerman and the sentence of the murderer of a young man in Karaj metro are other examples. As mentioned, although the conditions for the acceptance of the claims of unintentional murder were not there, still these claims were accepted. This author believes that even if the court’s judgment was intentional murder, the punishment should be imprisonment and not retribution. However, the surprising point is that when in particular cases there is institutional support the government shows tremendous amount of tolerance to the point that despite clear evident of prior intent and existence of the instrument of murder, the decision is based on the statement of the accused and a decision of not guilty is issued. However in many other situations which there are clear reasons for not applying it, a retribution decision is rendered.

Jurisprudential Reasoning

Exclusion from retribution of cases of altercation and deaths by accident after the establishment of lack of prior intent is in accordance with the view of major religious scholars as well. For instance, as it is mentioned in Tahrir al-Vasileh “if the next of kin claims that the murder was intentional and the murderer denies it, the murderer’s sworn testimony is accepted.”

Conclusion

In the past year, on average there was one execution judgment or implementation a day. There is an increasing trend, in all likelihood because of the indifference of official and the press. This indifference towards the increasing number of executions places us in an uncomfortable situation vis-à-vis the statement of the Lord regarding the killing of one person being equivalent to the killing of all people. The killing of a human being is both the source and propagator of violence and has no relationship to kindheartedness, a caring society, and the benevolence of the Creator. It is hence necessary to stop the spread of crime, felony as well as executions as soon as possible.

Emadeddin Baghi

24 April 2006