Judicial Processes Involving Young Offenders

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One of the areas of conflict and contention for criminal law experts and international organizations concerned with human rights, revolves around the issue of age of legal responsibility as well as providing a just system of prosecution for minors, as due to physical and social factors their circumstances are different that those affecting adults.

Minors are among those most affected by the society in which they live, and perhaps because they are undergoing the early stages of their personal development, judicial processes involving investigation as well as adjudication demands greater attention. This is so that there is a greater chance to guarantee their re-introduction to the society at large.

Unfortunately, despite widespread objection regarding the age of legal responsibility, the judicial procedure in Iran is based on a system that considers nine Lunar years[1] the legal age for girls and fifteen Lunar years for boys.[2] This calculation is based on Islamic Fiqh and Sharia. Although there is a great deal of disagreement among religious authorities on this issue, nevertheless, for purposes of judicial processes and criminal charges, the above ages remain in effect.

An exception of Article 49 of the Iranian Penal Code defines a minor as: "a person who has not reached the age of maturity as stipulated by Islamic jurisprudence." However, the code fails to refer to the age of legal responsibility according to Islamic jurisprudence. This is despite the fact that lawmakers cannot and should not legislate vague and ambiguous laws, especially when involving the rights of individuals, in particular their right to freedom or in some cases their right to life. In order to address this vagueness, judges mistakenly apply article 1210 of the civil code. In this article, the ages of nine and fifteen have been identified as the ages of maturity in relation to civil codes. The problem remains that many Islamic jurists avail themselves the right to express an opinion about such critical and specialised issues. Determining the age at which an individual reaches mental maturity is a matter that must be determined by medical experts, however, Islamic jurists maintain that it is their right to determine this age and do so in light of physical and sexual maturity with complete disregard for mental maturity. They do not consider whether physical development of sexual organs is related to mental maturity or the ability to determine right from wrong.

Nevertheless, the erroneous and unfair pattern remains a part of body of laws set by the Islamic Republic of Iran. For instance, should a ten year old girl and a fifteen year old boy commit a crime, they will be tried as adults and may even be sentenced to death by hanging or stoning, or face long sentences or amputation. These punishments are against human rights standards for adults, but in case of minors, they are nothing short of tragic. It is interesting to note that in Iran’s judicial system, which is also based on Islamic Fiqh, in civil matters such as the right to vote, drive or the right to carry out business transactions, are only valid when carried out by individuals over the age of eighteen. If a person is below the age of eighteen, she or he cannot hold a driver’s license or cast a vote in the elections. But when unwillingly or unintentionally is party to a childish act that counts as a crime, she or he is tried and punished as an adult.

This is an important matter in relation to the rights of minors in Iran and has resulted in numerous challenges deserving immediate attention. However, here is another matter worthy of attention that must be explored, that of judicial processing of juvenile cases. Are they given the benefit of a just system when facing criminal charges against them? Prior to 1999 minors were tried as adults. Objections by the legal experts and children’s rights activists resulted in adding a short section on minors to the 1999 Criminal Code of Procedure.

In this Code, in light of Article 49 of the Penal Code, an exception of Article 219 identifies a minor as one who has not reached the age of legal maturity in accordance with Sharia. In order to give the appearance that cases of minors are conducted differently than those of adults, exception 220 determines that criminal cases of persons under eighteen years of age will be tried according to General Provisions. This is the first instance since the Islamic Revolution that legislators observed special consideration for individuals under the age of eighteen. However, this is only with regards to the hearing procedure and does not apply to type and degree of penalty. Furthermore, it does not apply to crimes which penalty includes execution and retribution. It must be mentioned that in 2002 the representatives of the Guardian Council passed articles that in practice worked against public interest and special consideration for children’s rights and in a way undermined criminal procedures for children under the age of eighteen by interfering in criminal proceedings for minors.

Article 20 of Public and Revolutionary Court Act determines that crimes resulting in penalties such as retribution, execution, stoning, hanging or life in prison, as well as political or press offences are processed through provincial courts.[3] These two legal measure, article 22 of the Criminal Proceeding Code and article 20 of Public and Revolutionary Court Act, have for years resulted in ambiguity among judges resulting in their decision to refuse to rule in cases involving minors for a variety of reasons, until contradictory and inconsistent verdicts resulted in a decision in 2006 by the highest judicial authority, High Council of the Judiciary, which verdict is binding on all judicial authorities, issued a procedural verdict. The Council clarified: “in accordance with an amendment of Article 220 of the Criminal Procedure Act of the Public and Revolutionary Courts approved on 11 April 1992 cases pertaining to crimes punishable by retribution, execution, stoning, hanging or life imprisonment as well as political or press offences will be carried out at provincial criminal courts” and because of this amendment, in first instance, dealing with offences in this Act according to their importance and severity of punishment and the need for greater precision in terms of social factors, general jurisdiction of the juvenile court which is presided by one judge, are separated and instead relegated to the exclusive jurisdiction of the provincial criminal court, which is usually presided by five judges. In light of the above, according to the majority vote of the Supreme Court Council, investigations pertaining to criminal offences by adults younger than eighteen years of age, with the approval of the amendment of Article 20 of the Amendment Act of Public and Revolutionary Courts in 2002, are exempted. This verdict poses a number of fundamental problems:

  1. Judges presiding over juvenile courts investigating offences committed by children under the age of 18 know the children first hand and have gone through the necessary training on interactions with minors, as mental and emotional immaturity may result in sensitivities and vulnerabilities and the atmosphere of courts and inappropriate interactions with minors can cause them to stray from a healthy and socially acceptable lifestyle.

  2. Although there are five judges presiding over provincial criminal courts and their majority vote determines the judgment of the accused, in reality because most judges in such courts lack sufficient knowledge about mental and emotional needs of children, and are exposed to many other cases involving professional criminals, they may disregard the accused minor’s lack of mental maturity, and issue sentences that cause additional emotional and mental pressures for the accused.

  3. Many provincial criminal court judges are unaware that children committing a crime under the age of eighteen are not referred to as guilty. They are ‘children in conflict with the law’ as applying the terminology of guilty and criminal, due to their violent nature, yield a negative impact on the personality of the child and causes them to lose confidence in pursuit of a socially acceptable lifestyle and remain vulnerable to the slightest possibility to stray away. When such judges lack proper awareness about child behavior and psyche, is it possible for them to adjudicate over cases of minors, even if there are five?

  4. In some cases verdicts have been issued, where three of the five judges have condemned, while two have acquitted the accused under the age of eighteen of the death penalty, for the reason that the accused lacks proper mental maturity. So if these two judges had presided over a juvenile court, the accused would have been acquitted.
    The result is that lack of a just system for minors under the age of eighteen, in and of itself can result in verdicts that can result in a minor’s death and threaten the legal safety of minors. Therefore, it is essential for defence of the fundamental rights of minors in courts, that a law is passed which ensures their rights.
    However, with regards to cases involving children (girls below nine lunar years and boys below fifteen lunar years) and also minors less than eighteen years of age, who commit civil offences, the laws does guarantee some of their rights. Although in practice we witness that some judges and even law enforcement authorities disregard the laws, nevertheless, laws have been passed that apply to all persons below eighteen years of age, such as:

    • When investigating cases of minors, the court is obliged to inform the parent or guardian to attend the sessions in person or identify a legal counsel. Should the parent or guardian fail to do so, the court must assign the case to a public defender.

    • Should it be necessary to investigate the emotional or mental condition of the minor, his parent or guardian or his social environment, the court can employ whatever means at its disposal to do so or engage the services of experts.

    • Summoning a minor for the purposes of carrying out preliminary research and investigation must be done so through her/his parent/guardian. Failure to appear, in accordance with the relevant laws, will result in arrest. This matter does not prevent the court from summoning and detaining the minor.

    • If detaining the child with a view to investigation or collusion of the crime is not essential, or if the child does not have a parent or guardian and the person in charge of his care or any other person is unwilling to face legal liability or place bail, the accused minor will be temporarily kept at the juvenile correctional centre. Should one not be available in the given location, the court will determine another suitable location.

    • Criminal investigation will both be carried out in public and instead it will be attended by the parents and legal guardians of the child, lawyer, eyewitnesses and witnesses and a representative of the juvenile correctional centre whose presence the court considers necessary.

    • Should it be in the interest of the minor, parts of the investigation will be carried out in the absence of the accused but the verdict of the court will consider the accused as present.

    • If one or more children were party to the crime along with other adults, the case of the minor(s) will proceed through juvenile court.

    • Criminal juvenile courts, based on progress reports of the accused received from correctional facilities, can review its previous verdict once and decrease the sentence for up to one fourth of the original duration.

As demonstrated above, although a number of legal articles regarding the relevant criminal procedures for minors are included in the body of laws set by the Islamic Republic, yet they are not sufficient to protect the rights of minors below the age of eighteen. On the other hand, Iran signed the Convention of the Rights of the Child in 1994. This Convention includes 54 articles that apply to Iran. However, practically, we see that the Islamic Republic has simply accepted these articles to appear as a defendant of children’s rights. So although Iran has made certain reservations, the Convention applies to Iran and its articles must be implemented.

[1] Eight years and eight months according to the Gregorian calendar

[2] Fourteen years and seven months

[3] Provincial criminal court is a branch of appeals court that operates with five judges

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