The roots of jurisprudential and human rights challenges of Article 91 of Islamic Penal Code 1392 regarding of death penalty for juveniles

The provision of Article 91 of the Islamic Penal Code 1392 has ambiguities and difficulties both from a jurisprudential and human rights perspective. The possibility of interpreting the law to the effect that, in principle, adults under the age of 18 are sentenced to death, except in exceptional cases; the authority of the judge to prove that an adult under 18 years of age is not subject to exceptional cases; disregarding the personality of adults under 18, and the vagueness of the alternative punishment of the death penalty are some of these difficulties. The present article attempts to identified these ambiguities by employing a descriptive-analytical method and by using legal documents, Islamic jurisprudential and judicial opinions. Finally, some suggestions to modify the law was propsed.

By ratifying human rights documents (such as Article 6 of the International Covenant on Civil and Political Rights & Article 37 of the Convention on the Rights of the Child), Iran has committed not to execute persons under 18. However, in the previous Islamic Penal Code (1370), once children reached the age of legal maturity (9 and 15 full lunar years), they are supposed responsibil even for crimes that were punishable by death. Therefore, death penalty for crimes before the age of 18 was incompatibile with the mentioned obligations, until the Iran enacted Article 91 of the Islamic Penal Code of 1392 in this regard.
From other hand, Iran also obliged to respect Islamic standards (the fourth principle of the Constitution of the Islamic Republic of Iran); Therefore, the Iran has two obligations regarding the  death penalty for  juveniles, the first one is a human rights obligation and the second is a religious obligation; Therefore, the compliance of Article 91 of the Islamic Penal Code with these two forms of commitment needs to be investigated. In this regards, the main questions are as follows: "1. What are the jurisprudential and human rights challenges of Article 91 of the Islamic Penal Code 1392 in relation to the death penalty for adults under 18 years of age? 2. What are the roots of these challenges? And 3. What is the solution  for these difficulties?". In order to answer the three mentioned questions, three levels of analysis were adopted.  First, each challenge is described and then criticized in terms of legal foundations, jurisprudential (fiqhi) evidence and relevant human rights documents. Then, the roots of these challenges and the presuppositions that exist at the background were analyzed. After that some suggestions to modify the law were proposed. The present article differes from previous researches in that it involves a comprehensive view of the chanllenges raised by article 91 of Islamic Penal Code and suggests a revision of the law.

In this research, the ambiguities and difficulties of Article 91 of Islamic Penal Code 1392 in relation to the death penalty for juveniles, have been identified by using library sources and in a descriptive-analytical method.

The difficulties of the article are extra-legal and extra-islamic jurisproudnece rather than jurisprudential or legal. Its root lies in the lack of attention to philosophical issues about jurisprudence and different levels of law (especially legislation and islamic jurisprudence). Having a cross-disciplinary and extra-legal perspective and paying attention to philosophical issues about jurisprudence and law, it is concluded that solving the problems depends on taking these issues seriously:(1) In traditional and classical jurisprudence, the meaning of the “condition of reason” in criminal cases is not only its literal meaning (only the absence of insanity), but it also includes intellectual perfection. Therefore, failure to refer explicitly to the conditional nature of criminal liablity and its dependance on intellectual perfection can not be the reason for its absence in jurisprudance. (2) The requirement of rational perfection for criminal liability is logical in the sense that the absence of explicit reference to it can not be attributed to Shariat; So, (3) believing that criminal liability is dependant on both intellectual perfection and criminal liabilty is possible and defensible from the point of view of Shari'ah and jurisprudence, and it is also necessity. (4) Legal system, jurisprudence and Shariah in various legal fields (including law education, legal research, legislation, law enforcement and litigation) should move in this direction.

The two concerns of compliance with Islamic standards and with human rights obligations have led to the approval of Article 91 of the Islamic Penal Code (2012). The following five interpretations are inconsistent with the relevant human rights documents and cannot be defended based on the correct inference from islamic jurisprudence:(1) The article allows commentators to interpret the law in this way: death penaltyof an adult under 18 is only an exceptional matter; (2) distingushing and proofinf of criminal maturity lacks criteria; (3) Given this fact that the perpetrator is not subject to the mentioned exception, the judge can even ignor the medical reports about the juvenile under 18 about rechhing full Intellectual growth ; (4) The personality of a under 18 person who is punishable by death penalty is not considered; In the event that the judge determines that the juvenile under 18  is not executed due to the lack of full wiseness and criminal growth, the alternative punishments are ambiguous.