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Legal Curbs Fail to Halt Stonings in Iran

By Rasa Sowla; Source: Institute for War & Peace Reporting (IWPR)

Fundamentalist judges still feel empowered to order barbaric punishment despite attempts to ban it.

There are still many advocates of execution by stoning in Iran, who cite "immutable" Islamic law. Many are allies or protégés of Ayatollah Mesbah-Yazdi, pictured here.
(Photo: Abolfazl Nesayi/Mehr news agency)

The Iranian government continue to sanction execution by stoning, despite past judicial rulings against the practice and the massive international damage it does to the country's image.

Every so often, Iran hits the international headlines when a court orders someone to be stoned to death for adultery. International campaigns sometimes embarrass the Iranian authorities into halting or postponing the execution, or simply switching to another form of capital punishment.

The most recent case is that of Sakineh Mohammadi-Ashtiyani, sentenced to be stoned to death for committing adultery during marriage. In July, the sentence was put on hold following an international outcry, but the authorities have not ruled out execution by other means.

For married men and women, extramarital sex is punishable by death by stoning. In practice, the law is applied unequally and women are far more likely to be convicted and killed in this horrific manner, in which the victim is half-buried in the ground and pelted with rocks by a crowd.

Judges in Iran order execution by stoning under a 1983 law detailing offences proscribed by God, and then under the general Islamic penal code, ratified in 1991 and again in 1996.

Under the law, the burden of proof needed for a conviction for adultery is so great as to render it impossible - both individuals must confess to it four times, or a specified number of eyewitnesses must have witnessed them in flagrante. If either defendant withdraws their confession, the case will be dropped, and if they repent, the judge can offer clemency.

In theory, therefore, adultery should be almost impossible to prove. But in practice, judges in Iran sometimes base convictions for adultery on a penal code provision allowing them to formulate rulings on the basis of their own knowledge and judgement.

Yet since the early days of the Islamic Republic, some senior Shia clerics have spoken out against stoning.

After one execution was carried out in Kerman province in 1980, Supreme Leader Ayatollah Ruhollah Khomeini asked the prosecutor general Hossein Mousavi Tabrizi not to sanction any more stonings.

As Mousavi Tabrizi recalled, "I asked what should happen if someone made a confession. He advised me to prevent them confessing."

On Khomeini's orders, the Supreme Judicial Council - the body in charge of the judiciary at the time - apparently issued instructions to courts barring them from sentencing convicts to stoning.

In 2002, the head of Iran's judiciary, Ayatollah Mahmoud Shahroudi, issued a formal ruling prohibiting stoning. This happened under the rule of President Mohammad Khatami, whose reform-minded government had recently persuaded the United Nations not to pass a resolution condemning Iran's human rights record, for the first time in 20 years.

Rulings from the revered founder of Islamic Iran and the head of the judiciary should surely have been enough to stop the practice. Not in Iran, where the constitution says that sub-legal orders are invalid if they go against existing legislation. That means judges can safely ignore these instructions and order stonings under the 1983 law and penal code if they so wish.

There are few reliable statistics on the frequency with which stonings take place in Iran. Recent years have seen a rising number of cases reported. Although this coincides with the presidency of Mahmoud Ahmadinejad, his rule does not seem to have resulted in a rise in the use of this form of execution.

One high-profile case was that of Jafar Kiani and Mokarameh Ebrahimi, convicted of adultery in the small town of Takestan.

Kiane was stoned to death in 2007 in the village of Aghche-Kand, near Takestan in northwest Iran, despite specific instructions from chief justice Shahroudi that the execution should not take place.

Shahroudi did succeed in preventing the stoning of Ebrahimi, the woman.

Three months later, Mohammad Javad Larijani of the judiciary's internal human rights centre stated that Kiani and Ebrahimi had in fact been married so were not guilty. The local judge who ordered and participated in the stoning was suspended from office, but there has been no subsequent news of the judicial investigation into his actions.

A new penal code, which parliament submitted to the Guardian Council for approval last year, entirely omits the punishment of stoning. The change was driven by politicians and pragmatic clerics who realised the damage this form of execution was doing to Iran's already battered international image.

The Guardian Council has yet to approve the new code, citing discrepancies.

But legal experts say even the omission of stoning does not mean the prohibition of its execution. In practice the judge can continue to mete out such punishments based on a penal code provision allowing judges to select appropriate penalties from Islamic law in cases where written legislation is not explicit.

An Iranian lawyer, who asked not to be named, says some members of parliament are hoping that Supreme Leader Ali Khamenei will pass a fatwa against stoning, which would serve as a strong point of reference.

For the moment, hard-line clerics and judges still feel free to interpret Islamic law as they see fit, and few even in the establishment would dare challenge them for fear of appearing too moderate.

Because of this perception that they occupy the high ground of Islamic morality, advocates of stern punishment continue to go unchallenged. And there are still plenty of them in senior positions in government and the judiciary. Many of them are allies or protégés of Ayatollah Mesbah-Yazdi, one of the staunches proponents of traditional Sharia rules and penalties.

Speaking on August 31, Mesbah-Yazdi said, "The government must carry out Islamic decrees and penal orders - if a person steals, we must cut his hand off.... We cannot stand back from punishing those who have committed corruption."

Rasa Sowlat is the pseudonym of an Iranian journalist and social affairs analyst based in Mashhad.

... Payvand News - 09/27/10 ... --

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