A victimological outlook to juvenile delinquents in the light of the Islamic Penal Code of Iran

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A.    Introduction

‘Juvenile victimology’, as the theme of the 1st International Scientific and Practical Conference “JUV-2023”1 could be defined as a differential orientation and trend in victimology that focuses on the issues of all persons under eighteen who are called as ‘child’ and/or ‘juvenile’ victims. The position of victimhood may overlap with their delinquent characteristic assuming the perpetration of a delinquency.

From a comparative perspective, the IPC 2013 of Iran has assigned a chapter to punishments and rehabilitative measures for juvenile [5, p. 52]. There is no precedent for such detailed provisions in the old Islamic Penal Code (IPC 1991), and even, it could be said that, in the background of Iranian statutory law [12, p. 13]. It should be pointed out that IPC 2013, on the contrary of IPC 1991, has distinguished between two terms of ‘children’ and ‘juvenile’. In other words, while IPC 1991 used the single term ‘children’, which was defined all girls under nine and all boys under fifteen [2], IPC 2013 has differentiated these age groups in terms of the detailed provisions that are contained in the chapter ten of this code.

In Iranian law, based on the Persian etymology, the term ‘children’ (pl. of child) refers to the lower age groups who are below the age of puberty, while ‘juvenile’ denotes a young human who is below the legal age of majority. Such a distinction could be accepted according to the scientific (esp. bio-psychological) findings in relation to the development as a process of growth of a human and his/her attaining to the maturity [9, p. 188-189]. But in the Islamic jurisprudence (fiqh), there is a different justification for this issue based upon arguments that firstly, girl children and boy children have a fixed age of maturity, and secondly, girl children reach maturity earlier than boy children [9, p. 190]. This is the same provision that was adopted in IPC 1991. However, IPC 2013 introduces a new categorization for the first time to some extent based upon criminological-victimological findings notwithstanding its dependency on Islamic (fiqhi) test relating to the fixed age of maturity. This categorization can show a test for distinguishing between children and juveniles. Accordingly, children and juvenile are divided into four groups [10, p. 3]:

• a.    Persons who are not criminally liable absolutely, and irrespective of their potential dangerousness (based on its definition in criminology) are excluded from the provisions of criminal laws. They are specifically called ‘children’. Although according to the above-mentioned Islamic ( fiqhi ) test, the age of maturity for girls and boys is respectively nine and fifteen, which is also contained in Article 147 of IPC 2013, but boy children under fifteen are still subject to criminal sanctions’ provisions. Thus, boy children are not liable for a crime entirely when they are under nine, and as such there is no distinction between girls and boys. But, both of girl and boy children can be defined as victims or at-risk groups due to their vulnerability against victimization.

• b.    Persons nine to twelve years old who are the girls that can be held criminally liable and recognized as potentially dangerous, and also the boys that cannot be held criminally liable, but can be recognized as potentially dangerous. This group of persons are not defined as a separate class by IPC 2013, but they are subject to special types of criminal sanctions (inferred from notes of Article 88 of IPC 2013). Article 88 uses both terms of ‘children’ and ‘juveniles’ for this group that may be led

to complicated interpretations. For example, it may be argued that due to their maturity age test, the girls between nine and twelve are juvenile and the boys of this age group are defined as children. Such an interpretation does not seem true because based on psychological and criminological findings, they are still regarded as ‘children’, and thus, can be at the risk of victimization.

• c.    Persons twelve to fifteen who have similar position like the previous group. In other words, they are the girls who are criminally liable and recognized as potential dangerous, and also the boys who are not liable for a crime but can be recognized as potential dangerous. This separate class could be described as ‘juvenile’ because of a higher degree of mature or growth than the previous one. However, the juveniles twelve to fifteen are subject to different criminal sanctions comparing with the children nine to twelve (Notes of Article 88 of IPC 2013).

• d.    Finally, persons fifteen to eighteen who are the mature girls and boys that can be held criminally liable and recognized as potential dangerous. Article 89 of IPC 2013 uses the only one term ‘juvenile’ for this group of persons¹. It is obvious that recognizing these two latter classes as juvenile offenders (delinquents) do not negate their potential victimization at all.

This paper based on a descriptive-analytical methodology, examines the provisions relating to these fourth groups of children and juveniles from a victimological approach. Accordingly, the paper demonstrates a historical background of criminal sanctions for these groups in the Iranian legislative policy, and then explains the development of criminal sanction in new penal code (IPC 2013). The paper will also discuss the challenges of these provisions in respect of the maturity age test and the applicable criminal sanctions to juvenile delinquents.

B.    A Historical Background

IPC 1991 had regarded ‘infancy’ or ‘minority’ as a ban to criminal liability in spite of a categorization based on psychological and criminological findings, and thus, applied a narrower scope of criminal sanctions relating to juvenile delinquents that might ignore their potential victimization. The provisions of IPC 1991 provided that if a child commits a crime, they “are exempted from criminal liability, and correcting and educating them should be undertaken by their parents and guardians, and the Corrections and Rehabilitation Center, as appropriate” (Article 49)1. While undertaking children by their parents and guardians could provide a protective measure against potential risks of child victimization, but referring them to the Corrections and Rehabilitation Center as an imposed criminal sanction might put them at such a risk with regard to contact with older intimates in this center. Even the provision contained in Note 2 of this Article, which provided that “whenever correction and education of children require to punish them, the punishment should be appropriate and in favor of their interest”, could not negate the possibility of victimization of children because imposing punishments against all person under eighteen is governed by international recognized norms, which are defined in the United Nations Convention on the Rights of the Child 1989 (1989 Convention) [3]2. Therefore, Article 59-1 of IPC 1991 that did not criminalize conducts of parents and guardians of minors to be done in order to discipline or protect them provided that those conducts could be considered and recognized as reasonable, could be in conflict with the relevant international standards, especially those guaranteed by the 1989 Convention [8, p. 10].

C.    New Developments in IPC 2013

Under Chapter Ten of IPC 2013, several provisions have been provided under the title of ‘Punishments and Secure and Correctional Measures for Juveniles’. These provisions adopt the age categorization mentioned before (See A.). Despite some criminological considerations reflected in this chapter, there is a serious conflict between these scientific findings and the Islamic provision relating the age of maturity, particularly in terms of potential victimization of children and juveniles.

The basis of the provisions of chapter ten can be found in Articles 146 to 148 of IPC 2013 that respectively, provide that “Immature people cannot be criminally liable” (Article 146), and that the Islamic test of maturity age which is nine (for girls) and fifteen (for boys) is applicable (Article 147), and finally, provide that as for immature people, security and rehabilitative measures shall be applied according to provisions of the present code (Article 148). Despite the expression of ‘security and rehabilitative measures’ in this Article, Chapter Ten of IPC 2013, as denoted above, uses a different phrase as ‘Punishments and Security and Correctional Measures’ relating to juvenile delinquents. Such a conflict arises challenges that will be discussed in next section of the present paper.

D.    Challenges of Provisions Relatingto Juveniles in IPC 2013

Despite some criminological findings reflected in Chapter Ten of IPC 2013, the provisions contained in this chapter face challenges among which certain victimological issues and considerations arise.

• 1.    The Vagueness of Victimization and Delinquency Parameters Concerning the Maturity Age

• 2.    Challenges of Responses Typology and Juvenile Delinquency and Victimization The title of Chapter Ten of IPC 2013 has been assigned to a distinct phrase of ‘Punishments and Secure and Rehabilitative Measures for Children and Juveniles’ that makes a serious conflict between the provisions of Chapter Ten and Article 148 of IPC 2013, denoted before (See C.). Accordingly, if all minors deserve to receive secure and correctional measures, so they do not deserve to be imposed by punishment because of the lack of criminal liability because from a criminological viewpoint, criminal liability entails punishment while dangerousness involves secure and rehabilitative measures. Nevertheless, the provisions contained in Chapter Ten are in a drift situation in terms of how to use the binary system of criminal sanctions for juvenile delinquents. In other words, these provisions do not precisely specify that where shall each one of the binary criminal sanctions (i.e. punishment and secure and rehabilitative measures) apply to which one of age groups of children and juveniles?

The Islamic jurisprudence (fiqh), as referred before (See A.), defines a binary test for the age of maturity which distinguishes children and juvenile (9-a, p. 190). An important challenge is the ambivalence about the boundaries of terms ‘children’ and ‘juvenile’ through which overlaps occurs between these two groups, including, inter alia, in terms of their victimization and delinquency. This challenge is exacerbated because of a consequential gap between the maturity age of girls and boys. Thus, while a girl child is presumed mature in nine, a boy child is done so in fifteen. Consequently, a ten year old girl is presumed mature but a fourteen year old boy that is four years older than her is not done so. In addition to the problems of criminal liability (i.e. the time that a girl or boy reaches mature and can be held criminally liable), such a test may bring about a vagueness between the boundaries of juvenile victimization and delinquency. In other words, for example, a nine years old girl child may be at-risk of victimization as much as a fifteen years old boy child may do so, but none of them are not necessarily be held criminally liable contrary to the legal presumption of IPC 2013.

According to Article 88 and its note 1, certain decisions as secure and rehabilitative measures are applicable in response to children nine to twelve in accordance with the type of offences committed by them [12, p. 14] that can be considered as protective measures against their potential victimizations. These decisions include surrendering the child to their parents or legal guardians with receiving a commitment to protect them, to receive a commitment to fulfil certain educational, training or treatment programs, and giving advice by the court that all are at the discretion of the court [10, p. 4]. However, there is an ambivalence in terms of distributing these measures among children in this age range. In other words, the decision about who deserves what kind of the measures in question seems random depending on the discretion of the judge, and it may make a distinctive procedure between juveniles who could be protected against victimization risks and those who could not be so.

Also, according to Article 88 and its notes 1 and 2, same decisions as secure and rehabilitative measures are applicable in response to juveniles twelve to fifteen depending on the type of offences committed by them. These decisions include caution or warning and or guarantees of non-repetition of crime, and finally, time custody in the Correctional and Rehabilitation Center. They apply for those juveniles who commit certain types of so-called ‘ta’zir’ crimes that are punishable by custody and fine. The above-mentioned decisions are also applicable to those juveniles who commit another certain types of so-called ‘had’ and ‘qisas’ crimes that are punishable by corporal punishments including a sentenced number of lashes and death or mutilation as retaliation [12, p. 15]. Thus, the difference between these two sets of decisions depends on the seriousness of crime and the age of juvenile [11, p. 167]. Nevertheless, both types of these decisions as penal sanctions are in opposition to the international standards relating to restrictions of imposing corporal and custodial punishments on children and juveniles. Consequently, these groups of children and juveniles who commit ‘ta’zir’ or ‘had’ and ‘qisas’ crimes can be defined as victim based on the international concrete norms of human rights law.

Furthermore, certain criminal sanctions, as ‘punishment’ (instead of ‘decision’ used in previous provisions), including fines, community service, home confinement, and custody in Correctional and Rehabilitation Center apply to juveniles fifteen to eighteen, because these class of juveniles are deemed mature and can be held criminally liable [10, p. 5]. However, such criminal sanctions differ from punishments usually imposed on adult criminals, and even, some of these responses are defined as ‘secure and rehabilitative measures’ [11, p. 167].

According to Article 90 of IPC 2013, the Juvenile Court has power to correct its decision based on the received reports relating to the situation of juvenile in the Correctional and Rehabilitation Center, and consequently, reduce duration of custody to one third or change the custody into surrendering the child to their parents or legal guardians provided that the child has at least spent one fifth of duration of custody. This decision is final and do not stop enjoying the legal entitlements such as probation and parole. Moreover, the court has power to reduce punishment to half or change the type of secure and correctional measures if the mitigating factors established (Article 93 of IPC 2013), or defer or suspend sentencing (Article 94). Finally, decisions against juvenile delinquents have no criminal effect (Article 95) [12, p. 15]. Thus, all these provisions can be in favor of children and juveniles interests because they are regarded as protective measures for these age group of persons, and also may prevent the victimization risks against them.

Finally, regarding Article 91 of IPC 2013, if any mature juvenile under eighteen commits a ‘had’ or ‘qisas’ crime, provided that they do not able to realize the nature or obscenity of conduct, or there is uncertainty about their mature and full-grown, one of the previous-mentioned criminal sanctions of Chapter Ten will be applied. Therefore, Article 91 can result in imposing sever punishments on those juveniles under eighteen who are guilty of a ‘had’ or ‘qisas’ [4, p. 60]. More important, there is a serious challenge in respect of Article 91 that according to acontrario (argument from the contrary) of its provision, if any mature juvenile under eighteen commits a ‘had’ or ‘qisas’ crime, provided that they do able to realize the nature or obscenity of conduct, or there is no uncertainty about their mature and full-grown, the corporal punishments of ‘had’ or ‘qisas’ crime that can be death will be applied. Thus, imposing these punishments are inevitably in contradiction to international concrete norms (i.e. a violation of human rights of children and juveniles as a victim) which are particularly recognized in the Convention 1989 [3], that Iran has ratified it in 1994.

E.    Conclusion

The provisions of IPC 2013, compared with IPC 1991, demonstrate a development in the Iranian criminal system. Within the sphere of provisions of Chapter Ten, this development has been crystallized in the form of a crimi-nological-victimological categorization of various age groups of children and juveniles as well as a diverse range of criminal sanctions including penalties and secure and rehabilitative measures for children and juveniles. However, these provisions face challenges particularly when contrasted with Islamic ( fiqhi ) regulations relating to maturity age and certain types of crime like ‘ had ’ and ‘ qisas ’. These challenges bring about difficulties as regards the goals of IPC 2013 and the Iranian international affairs.

From the perspective of the goals of IPC 2013, it should be noted that if this code has been adopted in parallel with the developments of the Iranian legal system so it must resolve or mitigate the system’s challenges not add new challenges or aggravate the current difficulties. The present code seems having serious conflicts and difficulties in regard to definition of a specified test for maturity age and to make appropriate criminal sanctions with the seriousness of juvenile delinquency in order to preventing their potential offending and victimization. Considering the applicability of ‘ had ’ and ‘ qisas ’ provisions to offences committed by the juveniles fifteen to eighteen (Article 91), describing these offences as ‘delinquency’ appears questionable and doubtful. Additionally, the responsology of this type of delinquency is paradoxical because it reflects two contradictory functions including penality and correction.

The punitive function denotes to applicability of severe penalties like ‘had’ and ‘qisas’ against certain groups of juveniles under eighteen that indicates the institution or agencies of penal system (particularly the Correctional and Rehabilitation Center under the authority of the judiciary system). Such institutions and agencies can play a converse role in the form of risk factors of victimization instead of rehabilitation of children and juveniles. Also, designating correctional function for the penal system is in contradiction to its punitive feature because justice for all juvenile delinquents and victims necessitates applicability of a unified system focusing on correction and rehabilitation rather than discipline and punishment.

Consequently, the proper solution with reference to the Iranian international commitments is to implement the1989 Convention that Iran ratified it in 1994 [7, p. 74]. Thus, in order to terminate conflicts relating to different mature age for girls and boys, amending the provisions of IPC 2013 seems necessary. Such amendment requires the Iranian policy makers to accept the international standard age contained in the 1989 Convention instead of the current binary age. The binary age results in a challenging differentiation between girls and boys. It also brings about difficulties in identifying them as ‘child’ or ‘juvenile’ that were discussed in this paper.

Furthermore, prohibiting the use of sever punishments like death penalty against under eighteen persons is another solution to establish a unified justice system for juvenile delinquents and victims. In other words, with regard to Article 91 of IPC 2013 according which imposing corporal punishments on juvenile offenders has been possible in practice, there is a relative means but not an absolute solution to avoid execution of juveniles because deciding about their criminal liability requirements is a matter of judicial discretion. Therefore, amending or abolishing Article 91 in order to an absolute prohibition of juveniles’ execution se ems necessary¹.