UN Committee Urges Iran to Comply with their International Obligations
Following a review of the situation of children in Iran, the UN Committee on the Rights of the Child (CRC) has published its concluding observations on the combined third and fourth periodic reports of the Islamic Republic of Iran (IRI). The report criticises the IRI in quite a few number of areas where national laws and practices fail to comply with international standards in relation to children’s rights. See the full report here.
Definition of the child, for instance, has been a major area of concern for the civil society and the Committee has taken a strong position on this matter. In a detailed report of February 2015, Insight Iran had submitted to the Committee that the age of puberty under Islamic Shari’a is still the definitive criterion for criminal responsibility and varies for boys and girls. It allows girls as young as 8 years and 9 months of age and boys of 14 years and 7 months to be held criminally responsible. This clearly is a very “low” and “discriminatory” standard, particularly against girls.
The Committee has raised serious concerns that despite its previous recommendations, the age of majority in Iran remains set at pre-defined ages of puberty for girls at 9 and for boys at 15 lunar years which results in depriving girls and boys above these ages from the protection under the Convention.
The Committee has also expressed grave concern about the persisting discrimination against girls in the IRI’s legislation and in practice in many aspects of life, including the discriminatory treatment of girls in family relations, criminal justice system, and compensation for physical injury, among others. Insight Iran had raised the issue of discrimination between boys and girls in various areas including compensation for bodily injuries.
Similarly, the Committee is deeply concerned about the law age of marriage in Iran (13 years for girls and 15 years for boys) and emphasised that it gravely violates rights under the Convention and places children, in particular girls at risk of forced and early marriages with irreversible consequences on their physical and mental health and development.
The Committee has urged the IRI to revise as a matter of urgency and priority its legislation to ensure that all persons below the age of 18 years, without exceptions, are considered as children and provided with all rights under the Convention. The Committee also urges the IRI to further increase the minimum age for marriage for both girls and boys to 18 years, and to take all necessary measures to eliminate child marriages in line with the IRI’s obligations under the Convention.
Insight Iran had submitted to the Committee that article 301 combined with article 612 of the Islamic Penal Code (2013), provides for lighter punishment if a murder is committed by a father or a paternal grandfather of the victim, more often in the name of so called “honour”. In such cases, judges have a full discretion and can even decide to release the perpetrator without any punishment paving a way for total impunity for killing one’s child.
The Committee has strongly urged the IRI to repeal article 301 of the Islamic Penal Code, and ensure that all perpetrators of murders committed in the name of so-called “honour” receive penalties commensurate with the gravity of their crimes.
Under article 91 of the Islamic Penal Code of 2013, in special conditions, children below the age of 18 years who have been sentenced to hudud and qisas punishments could be granted retrial and exemption from hudud and qisas punishments. However, Insight Iran had raised concern that such exemptions are under full discretion of judges who are allowed, but not obliged to seek forensic expert opinion.
The Committee has expressed serious concern about this issue and that several persons have been re-sentenced to death following such re-trials. The Committee deplores that the IRI continues to execute children and those who have committed a crime while under 18 years of age, despite its previous recommendations and numerous criticisms by human rights treaty bodies.
The Committee has strongly urged the IRI as a matter of utmost priority to:
Insight Iran had urged the Committee to consider the differences between ta’zir crimes on the one hand and hudud and qisas on the other hand. We had submitted that while corporal punishment and flogging of children for the ta’zir category has been abolished for children under the new IPC, the same has not taken place with regard to Hudud and Qisas.
The Committee has paid a careful attention to these differences and while welcoming the changes in the 2013 Islamic Penal Code, it “remains seriously concerned that the IPC retains the punishment of children who reached the legal age of criminal responsibility (9 lunar years for girls and 15 years for boys) for crimes under the categories of Hudud and Qisas with sentences involving torture or cruel, degrading treatment or punishment, which has been and continue to be applied to children.”
Insight Iran had submitted an alternative report to the UN Committee on the Rights of the Child in advance of the Committee’s review of the IRI’s Periodic Report. The submission examined the IRI’s criminal justice system when dealing with crimes committed by, and against, children. The executive summary of the Insight Iran’s submission can be downloaded here.
Insight Iran had also joined other leading human rights NGOs such as Amnesty International, Justice for Iran, Iran Human Rights, and Baha’i International Community and made a joint submission to the Committee. One of the most comprehensive of its kind, the joint submission covered various areas of concern with regard to the IRI’s commitments pursuant to the CRC. We also took part in the Committee’s pre-sessional meeting in June 2015 in Geneva, where the submissions were considered and prepared for the main session of the review of the IRI January this year. All the submissions can be found here.
Age of Criminal Responsibility under Iranian Law
According to international rules, including the Convention on the Rights of the Child (CRC) and the Beijing Rules (United Nations Standard Minimum Rules for the Administration of Juvenile Justice), every human being under the age of eighteen years old is considered to be a child and the age of 18 is the standard age of entering into majority and full criminal responsibility. It is also established that the states have limited discretion to set a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. (Article 40 of the CRC)
The problem that arises in the IRI, and perhaps with some other Islamic states, is the contradiction between, on the one hand, the internationally accepted notion of “child” and age of criminal responsibility and, on the other hand, the age of maturity under Islamic Shari’a. In Islamic sources, reaching the age of maturity is deemed to be the point of leaving childhood and becoming an adult which results in full criminal responsibility. Additionally, in none of the Islamic schools is the age of maturity under Islamic Shari’a in complete conformity with the age of 18 as enshrined in international instruments and the age varies for boys and girls.
What is striking in the old and new Penal Code is that it includes an article that exempts immature children from criminal responsibility: according to article 146 of the new IPC “Immature children have no criminal responsibility”. Also, article 148 of the same law provides only correctional and security measures for immature offenders. Similarly, according to article 49 of the old IPC, “children” were exempted from criminal responsibility and, therefore, Correction and Rehabilitation Centres were in charge of correcting measures.
However, ignoring the internationally accepted definition of the child, the same laws define a child as an individual who has not reached the age of maturity under Islamic Shari’a. The only difference between the old and new Code is that, the old Code was silent on how old is “the age of maturity under Islamic Shari’a”, and, in practice, it arguably referred back to the Civil Code (article 1210) which sets 9 lunar years (8 years and 9 months) for girls and 15 lunar years (14 years and 7 months) for boys as the age of maturity. The new Penal Code has addressed this flaw and given this matter a separate article. Article 147 of the new IPC fixes the age of 9 lunar years for girls and 15 lunar years for boys as the age of maturity.
Despite the mandatory nature of the Penal Code, there have been many legal and religious disagreements about the age of maturity and criminal responsibility. Some Islamic jurists held different views on the age of maturity—for example some proposed the age of 13 lunar years for maturity of girls. Ayatollah Yousef Sane’i, for example, set the age of maturity for girls at 13 years old and not 9 years old. But the Penal Code has followed the fatwa by the majority of conservative clerics who deem 9 years to be the age of maturity for girls. The majority of lawyers have also believed that recognition of criminal responsibility for a girl of 8 years and 9 months old and a boy of 14 years and 7 months old is wrong, out-dated, and conflicts with the modern needs of society. In addition, the Committee had urged the IRI to set the age of majority at 18 and increase its minimum age requirements in accordance with international standards.
It was, therefore, expected that the new IPC would address such criticisms and take a step forward. However, while the new IPC stipulates the age of maturity, it makes no change as of its formulation and its recognition as the minimum age of criminal responsibility. In their third Periodic Report to the CRC, the IRI authorities have alleged that “[t]he absolute criminal age has [been] increased to 18 years” and that the new IPC no longer follows “the religious majority criterion”. These assertions are completely untrue. The age of maturity under Islamic Shari’a is still the definitive criterion for criminal responsibility under the penal regime of the IRI; and fatwas (i.e. religious opinions) and recommendations which offered older ages are completely dismissed.
So, in fact, the hope that the minimum age of criminal responsibility would be changed (i.e. increased) in the new IPC is lost. This formulation allows girls as young as 8 years and 9 months of age and boys of 14 years and 7 months to be held criminally responsible. This clearly is a low and discriminatory standard.
The low age of criminal responsibility in Iran has been subject to legal and practical criticisms: while the minimum age for many legal affairs such as the application for a driver’s license, obtaining a passport, and/or signing a deed, etc. is 18 years old, and people under the age of 18 years old are not considered as meeting the physical, mental and rational requirements for these acts, those same people, if they commit a crime, will be treated as an adult with full criminal responsibility. This is more considerable for girls as they are deemed of full criminal responsibility as soon as they become 8 years and nine months.
While the determination of a child’s minimum age of criminal responsibility falls within the provenance of State Parties, it should not be “unreasonably low”. Referring to the facts of emotional, mental and intellectual maturity, the Beijing Rules stresses that the beginning of the age of criminal responsibility should not be fixed “at too low an age level.” More specifically, a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not the be internationally acceptable.” Therefore, the age of criminal responsibility in the Iranian criminal system, particularly for girls (8 years and 9 months) is “too low” and well below the international standard.
The Committee on the Rights of the Child emphasizes that the minimum ages set by States should be the same for both boys and girls in accordance with the principle of non- discrimination. The IRI’s definition of a child and, subsequently, the minimum age is based on sex discrimination and is contrary to international standards. The Committee in its 2005 Concluding Observations on Iran urged the IRI to make the age of majority and minimum age requirements “gender neutral”. This was totally ignored by the IRI when they changed the law. In the changes made to the Penal Code in 2013 the old discriminatory formula was reaffirmed.
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 Proving maturity even before the aforementioned ages is possible under Islamic Shari’a on the basis of other physical signs. For example it is possible that a boy under the age of 15 is deemed as having attained maturity under Islamic Shari’a, if he is capable of producing sperm.
 Committee on the Rights of the Child, Concluding Observations on the second periodic report of Iran, UN Doc CRC/C/15/Add.254 (2005), para 23.
 The Islamic Republic of Iran, The Third Periodic Report on the Convention on the Rights of the Child, March 2013, p. 11.
 CCPR General Comment 17, Article 24 (Rights of the child) 1989, para 4.
 UNGA, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (1985), UN Doc A/RES/40/33, Rule and Commentary 4.1.
 General Comment 10, Children’s rights in juvenile justice, para. 32.
 General Comment 4, Adolescent health and development in the context of the Convention on the Rights of the Child, para. 9
 CRC, Concluding Observations on Iran 2005 (n 2), para 23.