Mitigation of punishment and extenuating factors under Iranian law – First Part
Regardless of whether the purpose of punishment in the Iranian legal system is to intimidate perpetrators or make them afraid of committing a crime to provide deterrence, a judge may encounter conditions and circumstances in which he can mitigation the punishment during the criminal court process.
For instance, on some occasions, the offender did not commit a crime with malice aforethought, or he is incited to commit a crime under the influence of tempting actions or words of the victim, or in some other cases, the offender does not have an effective criminal record.
In the above cases, the mitigation circumstances can be applied. The Iranian criminal law) Click here to read the Islamic Penal Code of Iran (allows the judges to commute or modify the sentences if mitigating reasons apply to the perpetrators. Mitigation under Iranian law means reducing the perpetrator’s punishment to less than the minimum of its normal sentence.
In other circumstances, even if the court found the accused guilty, applying the sentence could be waived. Moreover, even during the enforcement of imprisonment, the accused may enjoy some other types of extenuating circumstances, e.g., “Semi-Freedom Mechanism” or “Parole.”
This article is divided into two parts. The first article will discuss mitigation circumstances and extenuating factors under Iranian law. After that, we will analyze methods that can lead to lapse of punishment in Iran, such as repentance of the offender, the statute of limitation, remission by the complainant, and abrogation of the law.
In the second article, we address other legal remedies in terms of extenuating factors, e.g., suspension of punishment, suspension of sentence, Semi-Freedom Mechanism, and Parole. As well as the criminal liability of children and legally incapacitated persons. In the end, you can review two court decisions regarding the mitigation of punishment.
The Concept of mitigation of punishment under Iranian law
Mitigation of punishment under Iranian law is sometimes mandatory. The Iran Criminal Law reduces the penalties based on reasonable grounds as listed under Article 38 of the Iran Criminal Code or makes it impossible to enforce the penalty under Section No. 11 of the Iran Criminal Code. These mitigations are known as legal exemptions. Issuing a verdict concerning these reasonable grounds will be mandatory. In other words, in a specific crime, the law obliges the court of law to exempt or reduce the perpetrator’s punishment for particular reasons.
In addition to the above, there are also exemptions that the court has the discretion over; these exemptions are referred to as judicial mitigations. Judicial mitigation is applied if the court recognizes that the execution of the punishment is excessive for the offender and deems it necessary to reduce the sentence. Article 38 of the Islamic Penal Code states that: “if an accused has one or more of the mentioned factors, he can request a reduction of his sentence from judicial officials.” However, it should be noted that in these cases, the judge does not have to apply mitigation; instead, it can only offer a discount at its discretion.
The capacity of judicial mitigation is similar to the legal exemption. The legal exemption reduces the punishment to the minimum, and judicial mitigation reduces the sentence from the minimum stipulated in the Islamic Penal Code. This is why the legislator explicitly determines the legal remedies that lessen the punishment. Still, the recognition and compliance of the mitigation qualities are within the framework of the Iranian law with the judge of the court. The court must decide whether to reduce or change the punishment.
Categories of punishment under the Iran Penal Code
Penalties and charges in the Islamic Penal Code of Iran are divided into four categories:
1. Fixed Corporal Punishment
(in Farsi “Hodud”) this type of punishment, the circumstances requiring its infliction, type, extent, and modality of infliction thereof are laid down in the Holy Religion. (Article 15 of Islamic Penal Code). In simple words, the punishments their specifications have already been determined by Islam;
2. Talion
in Farsi “Ghesas”) is a principal Punishment for premeditated (i.e., deliberate and intentional crimes) offenses against life, organs of the human body, and uses thereof, which will be inflicted in the manner set in the Book Three of the Islamic Penal Code. (Article 16 of Islamic Penal Code);
3. Wergild
(in Farsi “Diyat”) whether quantified or unquantified, is an amount of money that, as prescribed by Sharia of Islam, shall be paid under the law for committing unintentional offenses against life, organs of the human body, and uses thereof and/or for premeditated offenses that on any ground have no talion punishment. (Article 17 of Islamic Penal Code);
4. Discretionary Punishment
(in Farsi “Ta’zirat”) is a punishment that does not fall under the titles of Fixed Corporal Punishment, Talion, or Wergild and will be determined by law in the instances of committing religiously forbidden acts or violating Government regulations. (Article 18 of Islamic Penal Code);
In Article 19 of the Islamic Penal Code, the legislature has divided Discretionary Punishment into eight degrees. There is one reason why the law only categorizes the Discretionary Punishment; according to the Islamic rules, changing or reduction of the Fixed Corporal punishments is not possible. Therefore, grading does not have any practical benefit for this category of punishments.
Grading of the Discretionary Punishments is determined based on the severity of the crime. In applying these types of punishments, the courts consider some essential elements such as the personal status of the offender and the circumstances of the crime. It goes without saying that in other types of punishments, the factors mentioned above have been considered by the courts. Still, the personal consideration in this group is bolder and more effective.
Type of Discretionary Punishments
The eight groups of Discretionary punishments are as follows:
First-degree punishment
- Imprisonment for more than twenty-five to thirty years;
- Fines of more than one billion rials;
- Property confiscation.
Second-degree punishment
- Imprisonment for more than fifteen to twenty-five years;
- Fines of more than five hundred and fifty million rials to one billion rials.
Third-degree punishment
- Imprisonment for more than ten to fifteen years;
- Fines of more than three hundred and sixty million rials to five hundred and fifty million rials.
Fourth-degree punishment
- Imprisonment for more than five to ten years;
- Fine fines from one hundred and eighty million rials to three hundred and sixty million rials;
- Permanent dismissal from public and public service.
Fifth-degree punishment
- Imprisonment for more than two to five years;
- Fines of more than eighty million rials to one hundred and eighty million rials;
- Deprivation of social rights for more than five to fifteen years.
Sixth-degree punishment
- Imprisonment for more than six months to two years;
- Fines of more than twenty million rials to eighty million rials;
- Whip from thirty-one to ninety-nine blows;
- Deprivation of social rights for more than six months to five years;
- Publication of the final verdict in the media.
Seventh-degree punishment
- Imprisonment from ninety-one days to six months;
- Fines of more than ten million rials to twenty million rials;
- Whip from eleven to thirty blows;
- Deprivation of social rights for up to six months.
Eighth-degree punishment
- Imprisonment for up to three months;
- Fine up to ten million rials;
- Whip up to ten blows.
Circumstances of mitigation punishment under Iranian law
In case of existing one or more extenuating circumstances, the above said penalties can be reduced in a manner that is more suitable for the culprit’s conditions. According to Article 37 of the Islamic Penal Code, the Discretionary punishments will be reduced or converted as follows:
- Reduction of imprisonment by one to three degrees in punishments of fourth and higher degrees;
- Reducing the fifth and sixth-degree imprisonment sentences by one to two degrees or converting this punishment and the seventh-degree imprisonment sentence into a monetary fine in the same degree, as the case may be;
- Converting the confiscation of all property into a first to fourth-degree monetary fine;
- Reduction of permanent dismissal from public services to temporary dismissal by five to fifteen years;
- Reducing other punishments by one or two degrees or converting it to another discipline of the same degree or one degree lower.
The following are the circumstances that according to Article 38 of the Islamic Penal Code, can lead to a reduction of the sentences:
- Pardon from the plaintiff: This criterion is specific for irremissible crimes. In these crimes, if the private plaintiff refuses to continue the lawsuit, the court may mitigate the punishment. It goes without saying that in remissible crimes, the pardon from the plaintiff resulted in disposal of a suit;
- Effective cooperation of the accused in identifying accessories and evidence: In some cases, subsequent to the commitment of the crime, the perpetrator may cooperate with the Police to collect evidence or find objects and things earned from the offense; these collaboration may help the offender benefits from mitigation;
- Incitement of the accused by the victim: If certain circumstances have been effective in committing the crime, such as the victim’s provocative conduct or word; For instance, in the case of murder, if the victim has said something or conduct a behavior that provoked the murderer, it may be considered as a mitigation direction. Also, the honorable motive of the accused to commit the crime can be a reason for mitigation;
- Confession of the accused: if the accused confesses or cooperates effectively with the judicial authorities prior to being prosecuted or during the trial before the issuance of the final decision, it can be considered as a reason of mitigation of the punishment;
- Defendant’s remorse for committing a crime, lack of criminal record, or special status of the accused such as old age and illness;
- Defendant’s efforts to reduce the effects of the crime and to compensate for the damage caused by the crime;
- If the damage to the victim is moderate and not serious;
- If the accused has minor effect on the process of the crime, for instance, as a minor accomplice of the crime without influential role in the occurrence of the crime;
The conditions under which an accused may not be eligible to be granted by the mitigation and extenuation under Iranian law
As a general rule, all of the accused may enjoy from the mitigation unless otherwise it is a special condition in the law under which the application of mitigation measures by the judicial authority is prohibited. You can find here below the most important restricting elements:
- Article 719 of the Islamic Penal Code:
If the injured needs immediate help in an accident whilst the driver refuses to take him to the hospital or does not seek help from the Police, the court cannot consider the mitigation.
- Note 5 of Article 2 of the Law on Punishment of Disruptors of the Economic System: Pursuent to the above note: “None of the penalties provided for in this law can be suspended or reduced by the courts”.
- If a convict is reduced due to one of the mitigating factors, the judge cannot lessen the reduced sentence again by citing another paragraph of Article 38 of the Islamic Penal Code.
- The punishments of those who have committed the crime of fraud, in which the amount of fraud exceeding an exact threshold, cannot be reduced (For more information about scamming and fraud under Iranian law, please click here).
Lapse of punishment
When a court has prosecuted an individual and found him guilty imposing a penalty on him, in certain circumstances regulated in the Islamic Penal Code, the prescribed punishment will not be applied. The legislator has categorized the cases of pardon, abrogation of law, remission by the complainant, the statute of limitation, and repentance of the offender as the circumstances under which the punishment could be collapsed.
Pardon
With regard to Iranian law, a pardon can be applied in two different methods; the private amnesty and the general amnesty.
The definition of private and general amnesty under Iranian law
The supreme leader, according to the Iran’s Constitution, is entitled to grants private amnesty. However, the general amnesty is enforced by law. As a result of the general amnesty, the trial and execution of the sentence are stopped, and all traces of the crime will disappear. In private amnesty, the subsequent penalty remains in force.
Private amnesty only includes convicts whose prosecution and trial have been finalized. Therefore, defendants and accused cannot be granted by the private amnesty. In contrast, the general amnesty could be applied for both groups of accused and perpetrator.
In a general amnesty, the consequential punishment of the crime also disappears; hence the criminal record is also removed from his record; But in a private pardon, a criminal record will not be eliminated.
Private amnesty has a personal aspect and includes only the person for whom the amnesty order has been issued. It cannot be applied to deputies and accomplices of the crime. In contrast, the general amnesty includes all those involved in the crime, including partners and accomplices.
Abrogation of law
According to Article 99 of the Islamic Penal Code, abrogation of law will abate prosecution and cause reprieve of execution of punishment. The effects of abrogation of criminal law shall be stated in Article 10 of the Islamic Penal Code of Iran.
Remission by Complainant
Remission by Complainant, as the name implies, means that the plaintiff does not prosecute or pursue to punish the accused. It should be noted that the remission by the complainant leads to a complete fall of the prosecution and punishment when the crime is remissible.
Statute of Limitation
Statute of Limitation means that a certain period specified by law has elapsed from the occurrence of the crime; in that case, the plaintiff loses the right to file a lawsuit, the prosecution of the accused, or the execution of the sentence against him shall be canceled.
According to Article 105 of Iran Penal Code, the limitation of period under statute of limitation, based on the degree of the crimes, is varying from three years to fifteen years.
Repentance of Offender
In some cases, repentance can be considered one of the reasons for laps of punishment. Article 114 of the Islamic Penal Code states that: “in respect of the offenses punishable by fixed corporal punishment. Except for false accusation of fornication (adultery) and Rebellion against God, Should the accused repent before they are found guilty, the genuineness of their penitence and reform will be quashed. Furthermore, the commitment of the preceding offenses, except for false accusation of fornication(adultery) and Rebellion against God. Has been established, the court may demand he/his pardon from the Leader Through the judiciary Chief.”
As a final conclusion for the first part of this article, we may conclude that under Iranian law, punishment can be reduced based on special circumstances, or the punishment can be revoked in accordance to the principles of amnesty.
Please continue reading the second part of this article “Mitigation of Punishment” for complementary information in terms of other extenuating factors applicable under the Iranian penal code.
If you have any further questions or willing to know more about mitigation in Iran, don’t hesitate to reach out to us by phone or email. Iran Best Lawyer is always available!
