[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

Sept. 19



IRAN:

Qisas: A Law for Injustice


In this commentary, IHRDC Legal Advisor Hossein Raeesi analyzes a murder case 
and the court documents corresponding thereto, which reveal how the legal 
remedy of qisas [the principle of retaliatory punishment] entrenches blatant, 
systemic, and structurally-entrenched violations of human rights in Iran.

The Case of Fatemeh

Fatemeh was born on November 8, 1991. On April 19, 2009, only seven months 
before her 18th birthday, she was charged with the murder of her 2nd husband. 
At the age of 15, Fatemeh had been forced by her family to marry her first 
husband. That marriage only lasted 15 days, during which she was beaten several 
times. The couple eventually decided to separate. Not long after her divorce, 
Fatemeh's family decided to erase the shame of Fatemeh's failed 1st marriage 
and forced her again to marry. They believed that in their small town 
environment, their once-divorced daughter would not have a chance to marry a 
suitable man. With this in mind, they found an employed maternal relative and 
forced her to get married for the 2nd time. None of her protests or objections 
worked. No one paid any attention to her needs.

Fatemeh, who was a student at the time, did not agree to live with her 
legally-wedded husband, with whom she never had a good relationship. Her 
husband lived in a room in a mosque, and every once in a while, Fatemeh would 
visit him in the mosque. Some of these visits ended in arguments between the 2. 
These arguments were so loud that the cleric and custodian of the mosque could 
hear them.

In April 2009, Fatemeh's husband was found dead in his room. The police 
immediately launched a search for Fatemeh and she was found in the library of 
her school.

One day after the incident and her arrest, the police began to interrogate her 
without the presence of a [defense] lawyer. They did not grant her permission 
to employ an attorney. Early on, at the police station, she admitted to the 
crime. But later in court, where she had a lawyer present, she denied the 
charges and announced that her confession was based on fear and ignorance of 
the system.

She emphatically denied the charge of the 1st-degree murder of her husband and 
declared that she had had no motive to kill him. But her objection to the 
forced marriage and her refusal to engage in the [marital] relationship gave 
the court sufficient reason to put an end to further investigations into the 
case [which could have found further exculpatory evidence]. As a result, 
Fatemeh has been in detention for more than 6 years now.

At the end of her 1st and only hearing, according to Article 206 of the Islamic 
Penal Code ratified in 1991, Fatemeh was sentenced to qisas nafs (qisas that 
results in the death of the convicted individual). Despite denying the charges 
throughout the hearing, she was sentenced to death. Her denial and her lawyer's 
defence had no impact on the judge's decision, nor did her age (17 at the time 
of the alleged murder), or the fact that she had been deprived of a defense 
lawyer at the outset of her arrest. She was sentenced to death in April/May of 
2010 based only on her confession on the 2nd day of her arrest, when she was 
still being deprived of access to counsel.

Fatemeh's lawyer's subsequent request for an appeal did not result in a 
reversal of the trial court decision, and 4 months thereafter the Supreme Court 
of Iran approved the imposition of the death penalty. After this, in order for 
the death sentence to be carried out, her file was sent to the Bureau for the 
Enforcement of Judgments on 1st-degree murder charges [these Bureaus for the 
Enforcement of Judgments are local offices of the judiciary throughout the 
country that are tasked with taking the administrative steps relating to the 
imposition of punishments after criminal sentences are finalized]. The sentence 
was then sent to the Head of the Judiciary, who in turn approved of the death 
penalty.

The only remaining hope for Fatemeh was to be granted a pardon by the victim's 
family. Many attempts were made to secure a pardon for Fatemeh, but they were 
all turned down by her husband's family.

Hope was gradually lost as despair and anxiety overwhelmed Fatemeh and her 
family, and Fatemeh went into a deep depression.

The Human Rights Council of the Judiciary and the National Authority on the 
Rights of the Child were both informed of Fatemeh's situation. Although she was 
charged with a crime that she allegedly committed as a minor, and was indeed 
sentenced to death as a minor, they have paid no heed to the case and have done 
nothing to stay her execution.

The View of the Islamic Penal Code ...

With the promulgation of the new Islamic Penal Code in 2013, the Islamic 
Republic of Iran (IRI) claims to have put a stop to the executions of those who 
commit crimes punishable by hudud (punishments based on the Quran or Hadith) or 
qisas (retaliatory punishments) before the age of 18. This claim is not 
completely unfounded, since Article 91 of the New Code makes mention of the 
above improvement to the law. However, a closer look at the content of sections 
of this same law reveals that in practice, not much has changed and the 
execution of young offenders has not been completely abolished. (1)

Chapter 10 of Book II of the Islamic Penal Code says that young offenders are 
not to be punished by execution. However, the majority of crimes mentioned in 
that chapter are punishable by ta'zir, a category of Shari'a punishments that 
allows for substantial judicial discretion in determining the manner and 
severity of punishment. Such crimes are based on Islamic rules, but the 
specifics of the penalties are determined by the judge, and the majority of 
crimes enumerated therein are less serious crimes that are not punishable by 
death or life imprisonment. As to crimes punishable by hudud or qisas, however, 
the same chapter only considers girls under the age of 9 lunar years and boys 
under the age of 15 lunar years as underage minors [meaning anyone accused of 
committing a capital crime over those minimums can be subject to the death 
penalty as well under this provision].

Thus, upon reflection it is clearly evident that the new developments in 
Chapter 10 and Article 91 of the Islamic Penal Code have little or no impact on 
the [positive] fate of young offenders. Furthermore, articles 146 and 147 of 
the [same] Code explicitly establish the age of criminal responsibility is 
indicated as a full 9 lunar years for girls and a full 15 lunar years for boys. 
(2)

It does appear as though the provisions in Chapter 10 of Book II of the Penal 
Code reflect some recent improvements in laws pertaining to young offenders. 
But upon exploring Fatemeh's file, it becomes evident that legislators in Iran 
do not intend to forego Shari'a Law in such cases. Otherwise, why would the law 
discriminate between girls and boys? There is no practical reason for the 
6-year difference between the social and legal responsibilities of girls and 
boys, whereby girls are criminally responsible at 9 lunar years of age and boys 
at 15 lunar years. Therefore, based on the Law, at this point a request for an 
extraordinary procedural review of the case was the only sure way to delay 
Fatemeh's impending execution.

As a result, Fatemeh's execution order was stayed by Branch 14 of the Supreme 
Court due to the request for an extraordinary procedural review on September 
21, 2013. Her age was discussed in the Supreme Court's order and on that basis, 
the execution order of May 2010 was overturned pursuant to the stipulations of 
Article 91 of the Islamic Penal Code. But the case did not end there--another 
court that was given the duty of reviewing her file paid heed neither to her 
lawyer's defense, nor to the reasons for the Supreme Court's reversal of the 
death sentence. As a result, in May of 2014, under to Article 206 of the old 
Islamic Penal Code and Article 290 of the new Islamic Penal Code, and at the 
request of the victim's family, Fatemeh was again sentenced to death by the 2nd 
trial court, which ignored Fatemeh's age at the time of the crime primarily 
because that the judges [in the initial trial] had sentenced her to qisas nafs, 
and also because Shari'a designates the age of criminal responsibility for 
girls to be 9 lunar years.

In re-issuing the death sentence, the 2nd court reasoned that Fatemeh's mental 
and emotional state [at time of the crime] allowed her to make an informed 
decision, that she knew what she was doing and was quite aware of the 
consequence of the crime that she [allegedly] committed when she committed it, 
and that the coroner had testified as to Fatemeh's sanity. This decision of the 
court demonstrates the arrogance of some Islamic countries, where sentencing 
children to death is justified only on the basis of Shari'a with the excuse 
that the children so sentenced are of sane mind, while the rest of the world, 
plainly recognizes 18 as the age of maturity.

Fatemeh's defense lawyer objected to the death penalty based on the fact that 
at the time of the crime Fatemeh was only 17 and because Article 37, Section 
(a) of the UN Convention on the Rights of the Child establishes that "no child 
should be subjected to capital punishment." The defense lawyer also argued that 
the necessary investigations had not been carried out and Fatemeh's original 
confession had been extracted under duress and without the presence of her 
lawyer and therefore the death penalty should be annulled. Both of these 
arguments were rejected by the court. (3)

Statutory Context

The insistence of [Iran's] legislators and judges on implementing the laws of 
hudud and qisas without regard for its obligations under the CRC is 
[apparently] motivated by their eagerness to carry out Shari'a. This insistence 
represents a total disregard of all the international obligations that Iran 
accepted when it ratified the International Covenant on Civil and Political 
Rights. Since Iran joined the Covenant with no provisions or conditions, then 
it must adhere to Article 6, Section 5, which clearly prohibits the execution 
of offenders under the age of 18. (4)

The Islamic Republic's commitment to the provisions of the Covenant is not 
subject to debate or derogation, and Iran is bound to consider the above 
provisions when legislating and executing laws. The Covenant also explicitly 
states that that nothing in its text can be interpreted in any way that would 
diminish the rights and freedoms recognized therein, or create any form of 
discrimination. (5) But Fatemeh's case and thousands of others clearly 
establish the Islamic Republic's gross and systematic breach of its commitments 
to the Covenant.

What is evident is that, in practice, legislation of important criminal and 
penal laws, such as 1st-degree murder laws, don't mean anything. Because all of 
the above laws are, in one way or another, interpretations of Islamic laws 
accepted by the country's religious leaders and not based on society's need for 
justice and equality [as under a more positivist model of lawmaking]. Upon 
exploring the most recent legislation in Iran, as well as Fatemeh's file, one 
can only conclude that the faulty and unjust Islamic Penal Code [of Iran] has 
not undergone any considerable reform.

In spite of the many promises of "freedom and equality for all" made by the 
leaders during the [1979] Revolution, the day after its victory it became 
evident that all social and legal relations and regulations in Iran were to be 
governed by Islamic laws. This remains the case to this day, with no exception.

The problem of Hudud and Qisas has been a great challenge to the country's 
penal laws since 1979. In the last 3 decades, not one day has gone by without a 
Hudud or Qisas order or execution being discussed or challenged in Iranian 
society.

Despite opposition from legal advisors, well-known political activists, and the 
Iranian Bar Association, Iranians face the gallows for different reasons on a 
daily basis (6).

In its attempt to "Islamize" Iran's legal and judicial system, the Supreme 
Judicial Council (Shoraye Ali Ghazai) of the time first introduced the Hudud 
and Qisas Law in the early 1980s under the title Hudud and Qisas Act. 
Interestingly, this Act has not yet turned into permanent law. In the 
beginning, on August 25, 1982, the Act was introduced as a pilot legislation, 
to be reviewed every 5 years. It has so far been ratified twice - in 1991/1992 
and 2012/2013 - each time as an experimental legislation. This is, of course, 
not surprising since the Act has never been based on social needs, it has not 
helped reduce the crime rate, and has very negatively impacted the country's 
development and security.

The characteristics of this Act and the insistence of the Government to execute 
Sharia Law have gradually resulted in the [Islamic] law permeating all levels 
of Iranian society. Law schools throughout the country teach and discuss the 
law of Qisas, many books and theses are written exploring the merits of the Act 
and its [Islamic] basis from its proponents' point of view, while its 
opponents, including lawyers and attorneys, are being prosecuted and 
imprisoned.

Conclusion

In short, one can unequivocally and emphatically say that the Law of Qisas will 
never safeguard justice [in Iran] for the following reasons:

1.The law of Qisas is founded on a serious violation of human rights because it 
promotes personal revenge and fosters indifference towards the conditions of 
the crime and the subsequent interrogation, as well as the offender's 
personality, mental health status and age (9 being the age of criminal 
responsibility for girls and 15 for boys). In the case of Fatemeh, too, we see 
that even if she had committed the crime, the court failed to pay any attention 
to the poor emotional state brought on by her forced marriage at a very young 
and vulnerable age. The court completely failed to consider Fatemeh's condition 
and in the end, she was dealt with very unjustly.

2.This Law consists of very clear forms of discrimination such as gender 
discrimination, a husband's right to kill his unfaithful wife (Murder in Bed), 
discrimination against adherents of religions not recognized in the 
Constitution, relational discrimination (father and paternal grandfather have 
the right to kill their child or grandchild), or discrimination based on the 
mental health of the victim (the murder of an insane person is not punishable) 
(7).

3.In Qisas, proof of guilt is not scientific and does not lend itself to a fair 
hearing. It can ultimately lead to proof of guilt despite "reasonable doubt" 
(8).

4.Qisas is, in reality, the right of the victim's family [to take revenge]. It 
is not a legal act designed to punish a dangerous offender in order to protect 
society. In this light, the plaintiff and the victim's family play a crucial 
role first in determining the verdict, and once the defendant has been found 
guilty, in determining [the severity of] the punishment. Therefore, only those 
[offenders] who have the power and means to either pay the plaintiff off or to 
bully them into withdrawing their request for Qisas will be able to flee the 
sentence (9).

5.Qisas fosters and promotes violence and injustice among people and pits 
members of society against each other.

6.According to the law, the punishment for 1st degree murder and 2nd degree 
murder is the same. Both types of offenders - those who commit premeditated 
murder and those who cause death in a sudden and non-premeditated manner - are 
sentenced to death. According to the Islamic Penal Code, all 3 classes of 
intentional homicide receive the same sentence (10).

7.Children under the age of 18 are subjected to punishment by death.

8.Qisas dictates the order of the court. The court of law becomes a 
battleground for the victim's family and the defendant. Under these conditions, 
it is not unusual for the prosecutor to [side with the plaintiff and] limit the 
defendant's right to a defense lawyer.

9.The Law of Qisas strips society of justice, the ability to improve the law, 
and the opportunity to receive fair trials.

10.Qisas is a tool that allows the Islamic Republic to show off its power, 
particularly with respect to public display of punishment, and systemic and 
political violence.

11. Lastly, although there are no accurate statistics on murder rates in Iran, 
it is quite evident that Qisas does not reduce crime and does not create legal 
security for its citizens.

Hossein Raeesi----Attorney, Human Rights Researcher

Footnotes:

1.Article 91 of the Penal Code passed in 2013 states, "In the cases of offenses 
punishable by hadd or qisas, if mature people under 18 years do not realize the 
nature of the crime committed or its prohibition, or of there is uncertainty 
about their full mental development, according to their age, they shall be 
sentenced to the punishments prescribed in this chapter.

2.Id., Article 146- Non-mature children have no criminal responsibility.

Article 147- The age of maturity for girls and boys are, respectively, a full 9 
and 15 lunar years.

3. All signing states of the CRC must adhere to the following provision:

Article 37 of the UN Convention on the Rights of the Child: (a) No child shall 
be subjected to torture or other cruel, inhuman or degrading treatment or 
punishment. Neither capital punishment nor life imprisonment without 
possibility of release shall be imposed for offences committed by persons below 
18 years of age.

4.Article 6 of International Covenant on Civil and Political Rights:

5) Sentence of death shall not be imposed for crimes committed by persons below 
18 years of age and shall not be carried out on pregnant women.

Id., Article 5:

1) Nothing in the present Covenant may be interpreted as implying for any 
State, group or person any right to engage in any activity or perform any act 
aimed at the destruction of any of the rights and freedoms recognized herein or 
at their limitation to a greater extent than is provided for in the present 
Covenant.

2) There shall be no restriction upon or derogation from any of the fundamental 
human rights recognized or existing in any State Party to the present Covenant 
pursuant to law, conventions, regulations or custom on the pretext that the 
present Covenant does not recognize such rights or that it recognizes them to a 
lesser extent.

6.For more information refer to the article on the Law of Qisas by Mohammad 
Hossein Nayyeri, available at 
http://www.iranhrdc.org/persian/permalink/3500.html#.VeXf9_lVhBc.

7.Articles 301 and 302 of Islamic Penal Code.

8.Id., Articles 312 to 349.

9.Id., Articles 347 to 367.

10.Id., Article 290.

(source: Iran Human Rights Documentation Center)

*******************

Life of Juvenile Offender on Death Row Spared


According to Iran state news media, Shargh, a juvenile offender on death row 
had his life spared after authorities implemented Article 91 of the revised 
Islamic Penal Code on his case.

The Article states: "In the cases of offenses punishable by hadd or qisas, if 
mature people under 18 years do not realize the nature of the crime committed 
or its prohibition, or of there is uncertainty about their full mental 
development, according to their age, they shall be sentenced to the punishments 
prescribed in this chapter."

The juvenile prisoner was reportedly arrested along with a friend when he was a 
teenage boy under the age of 18. He was reportedly charged with murder and 
sentenced to death in 2010.

Protesing his death sentence to the authorities, the juvenile offender said: 
"We were just sitting in a park and drinking alcohol when a young man 
approached us and attempted to take our phones from us. I refused, so he drew 
out a machete to stab me with. I was able to use his machete to stab him and 
also managed to get the weapon out of his hand and stab him a few more times. I 
was the one who delivered him to the hospital."

Iranian authorities changed the juvenile offender's sentence to 5 years in 
prison and also issued him lashings for consuming alcohol.

(source: Iran Human Rights)






SAUDI ARABIA:

Saudi Arabia rejects UN report on death penalty


Saudi Arabia has rejected a report from the United Nations secretary-general 
urging countries to scrap the death penalty, stating that this was punishment 
approved under Islamic law to protect the rights of victims.

The UN report was issued recently at a Human Rights Council meeting in Geneva. 
Faisal Trad, Saudi ambassador to the United Nations in Geneva, said the Kingdom 
had every right to define its own laws.

"Saudi Arabia is an Islamic state, fully sovereign, and is proud that Islamic 
law is the basis of the country's constitution. Islam ensures justice and 
protects the rights of all without discrimination, in addition to the right of 
life for all. The death penalty is a legal measure to protect the right to life 
and interests of the community," he said.

He said articles 5 to 19 of the report supported the views of countries that 
had scrapped capital punishment. "The report, unfortunately, did not include 
any views from countries that believe this punishment is an integral part of 
measures to achieve justice and protect the rights of victims," he said.

Trad said the Kingdom was committed to honoring Article 6 of the International 
Covenant on Civil and Political Rights, which guarantees the right to apply the 
penalty, including a commitment to ensure fair trials for all those accused of 
capital offenses.

He said the Kingdom's courts only sentence people to death for offenses such as 
murder and drug trafficking.

The country's judiciary is independent and protects the rights of all parties 
according to international law. In addition, lawyers are allowed to perform 
their duties without any interference, he said.

(source: Arab News)






INDIA:

Anti-death penalty hartal on November 11


The fact that we still have to fight for abolition of death penalty tells us 
how socially backward our country is, senior journalist B.R.P. Bhaskar has 
said.

He was speaking at a convention expressing solidarity with the anti-death 
penalty 'hartal' to be observed on November 11. "The Travancore state became a 
model by abolishing death penalty back in 1944. It came back here when we 
attained independence. Now, a majority of the countries have stopped death 
penalty. But here we are still fighting for its abolition," he said. The 
anti-death penalty 'hartal' is being organised by a collective of political, 
cultural and social activists.

(source: The Hindu)

*************

Death penalty to man who raped, killed 8-year-old niece in Pratapgarh


A court in Pratapgarh on Friday, handed over death sentence to a man convicted 
of rape and murder of an 8-year-old in July 2013. The court also slapped a 
penalty of Rs. 10 thousand to be paid to the parents of the victim and life 
sentence under POCSO (Protection of Children from Sexual Offences, 2012) Act. 
The murderer is the cousin of the victim's mother and the child called him 
'mama'.

On Friday, the court of District and Sessions Judge, Surendra Kumar Swami, in 
Pratapgarh vedicted the capital punishment to the accused, Prahlad Meena. While 
delivering the judgment, Swami said the crime committed is heinous and the 
accused has defaced humanity by the brutal act and hence deserves no less than 
a capital punishment. 'The child was not capable enough to resist and hence the 
act falls in the 'rarest of rare' case. The accused is a danger to the society 
and is to be hanged till death' came the verdict. The accused, 25-year-old 
Pratap Singh is cousin of the victim's mother. On July 6, 2013, Meena had gone 
to her house at Bhatoliya village of Arnod block, where the little girl was 
playing with other children.

On the pretext of buying her sweets, the accused took the victim to an isolated 
place and raped her. He then hit her head on a stone repeatedly, killing her. 
The victim's father lodged a case next day at the Arnod police station under 
section 302, 376 of the IPC and section 3,4 of the POCSO Act. Public Prosecutor 
Tarun Das Vairagi produced 14 witnesses and 31 documental evidences against the 
accused. It is the 2nd ruling under the POCSO Act in Rajasthan and various 
sections of IPC for rape and murder against the convict. The 1st case being a 
death penalty awarded to Manoj Pratap Singh in the district of Rajmasand in 
October 2013 who had raped and killed an 8 year old girl who lived in his 
neighborhood.

(source: udaipurkiran.com)






PAKISTAN----impending execution

Pakistan plans to hang paralysed man on Tuesday


The Pakistani authorities have set Tuesday 22 September as the date on which 
they will hang a paraplegic prisoner.

Abdul Basit (43) contracted tubercular meningitis while in prison, which has 
left him "bed-bound," according to a medical board report.

Basit's lawyers at Justice Project Pakistan (JPP) have filed a petition with 
the Supreme Court, arguing that to carry out the hanging would constitute cruel 
and unusual punishment. They are also calling on Pakistan's President to 
consider a mercy petition filed on 22 July, on which no decision has yet been 
made.

Pakistan's prison guidelines require that a prisoner stands on the gallows in 
order to be hanged, and the authorities have not made clear how they intend to 
hang a prisoner who requires the use of a wheelchair.

The Pakistan Prison Rules state that the rope for hanging must be the correct 
length, in order to avoid prisoners facing protracted strangulation (if it is 
too long) or decapitation (if it is too short). The rules state that the rope's 
length is determined by measuring it from "the lower jaw of the condemned 
prisoner as he stands on the scaffold." This and other procedures set out in 
the rules cannot be followed in Basit's case, leaving open the possibility of a 
botched hanging. The Lahore High Court (LHC) initially stayed Basit's case, but 
ruled earlier this month that it could go ahead, despite the prison's failure 
to make clear how the execution would be carried out. The Court added that 
Pakistan's obligations under international law "should be kept aside."

Commenting, Maya Foa said: "It may now just be days before we see the horrific 
spectacle of Pakistan hanging a parlaysed man - something which is likely to 
break Pakistan's own rules against cruel and unusual punishment. Worse still, 
Pakistan's Government has effectively ignored Basit's mercy petition, and seems 
prepared to push ahead with this execution even though the jail has no clear 
idea of how they will do it. Pakistan's President has the power to stay this 
execution - he must do so, without delay."

(source: commondreams.org)






SRI LANKA:

Gallows is not the solution to curb crimes: says Human rights activists and 
intellectuals


There is much talk in the society to implement the death penalty following 
several incidents where children were subjected to abuse.

President Maithreepala Sirisena stated yesterday that he will mull over the 
reinstatement of the capital punishment.

He stated that in order to do so, he will seek the approval of the parliament.

Our news team inquired from several Human rights activists and intellectuals 
regarding the matter.

Human Rights activists, Attonet At Law, Dr Prathiba Mahanama-hewa stated that 
implementing the capital punishment can be termed as violating human rights.

Professor Rohana Lakshmna Piyadasa from the Kalaniya University states that 
implementing the death penalty is not the final solution to curb crimes.

(source: Hiru news)