atmosphere of insecurity.”5 Judges have discretion to punish a crime of moharebeh with either the death
penalty, crucifixion, amputation of the right arm and the left leg, or banishment.6 Although permitting the
death penalty, the definition of morahebeh suggests that it also includes offences that do not involve
intentional killing, which therefore cannot be considered as “most serious crime” and cannot receive the
death penalty. Additionally, terms as such ‘terror’, ‘atmosphere of insecurity’ or ‘national security’ are
not defined under the Islamic Penal Code. Further, under Article 220 of the Islamic Penal Code and
Article 167 of the Iranian Constitution, a judge may refer to Islamic law – namely authoritative Islamic
sources and fatwas (a ruling on a point of Islamic law given by a recognized authority) – to convict and
sentence individuals to crimes and punishments not explicitly codified by the law. The Human Rights
Committee explicitly stipulated that the imposition of the death penalty cannot “be based on vaguely
defined criminal provisions, whose application to the convicted individual would depend on subjective or
discretionary considerations the application of which is not reasonably foreseeable.”7 The lack of
precision and clarity about what constitutes a crime of moharebeh grants judges broad interpretive
discretion and does not satisfy the principle of nulla poena sine lege (principle of legality).
Although Mr. Aghayan’s sentence was reportedly commuted to life imprisonment in 2015,8 the
Government repeatedly failed to ensure that death penalty sentences for charges of moharebeh complied
with international law systematically and in all cases. Despite the existence of several means and
mechanisms that accept complaints regarding the violation of rights in Iran, such as the Judge’s
Disciplinary Court, the Article 90 Parliamentary Commission and, in general, any appeals courts
including the Supreme Court, there is no readily available information that might suggest that complaints
regarding cases of arbitrary deprivation of life are properly addressed, investigated and adjudicated.
Further, and without a detailed response from the concerned State party, information received suggests
that Mr. Aghayan’s arrest and sentence were related to the legitimate exercise of his right to freedom of
religion or belief. Additionally, conditions of his detention may have violated his due process. Allegedly,
Mr. Aghayan’s father was only permitted to briefly meet with him once (as of time of the Special
Procedures’ communication in 2012).9 As stipulated by the Human Rights Committee in its General
Comment no.35, denial of access to family may amount to a violation of the procedural safeguards
provided under Article 9 of the Covenant.
Without a response from the Government of the Islamic Republic of Iran, there is no information that
might indicate that the rights and freedoms of Mr. Aghayan were respected to the highest level. Rather,
information received seems to suggest otherwise.
Recommendation Status:
This recommendation has NOT been implemented.
5
Iran Human Rights Documentation Center, https://iranhrdc.org/english-translation-of-books-i-ii-of-the-new-islamic-penal-code/
The Islamic Penal Code (2013), Articles 282 and 283, English translation, Iran Human Rights Documentation Center,
https://iranhrdc.org/english-translation-of-books-i-ii-of-the-new-islamic-penal-code/
7 https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf
8 https://www.en-hrana.org/yunes-aghayan-deprived-furlough-12th-year-imprisonment
9 Communication IRN 17/2012,
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=19734
6
2