- Österreichisches Rotes Kreuz
- Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD)
- Wiedner Hauptstraße 32, 1041 Wien
- T +43 1 589 00 583
- F +43 1 589 00 589
- info@ecoi.net
Dokument #1224014
ACCORD – Austrian Centre for Country of Origin and Asylum Research and Documentation (Autor)
In response to your above request we may provide you with the following information:
Among the sources consulted by ACCORD no information could be found on the subject of double conviction for murder abroad. However, we found some information about double conviction in general as well as in the context of drug offences.
In its Iran country report of March 2004, the German Ministry of Foreign Affairs (AA - Auswärtiges Amt) states that according to Iranian law it is possible to be prosecuted again for a crime that a person has been punished for abroad. According to Article 7 of the Penal Code, every Iranian citizen, who has committed a crime abroad will be punished according to Iranian law. A completed prison term may be taken into account for a reduction of a possible punishment:
„Das iranische Recht kennt kein Verbot der Doppelbestrafung. Vielmehr ist es grundsätzlich zulässig, einen Iraner, der im Ausland eine auch in Iran strafbare Handlung begangen hat und dort verurteilt wurde, nach Rückkehr einem erneuten Strafverfahren zu unterziehen. Gemäß Artikel 7 des iranischen Strafgesetzbuches wird jeder Iraner, der sich im Ausland strafbar gemacht hat und in Iran festgenommen wird, nach den jeweils geltenden Gesetzen der Islamischen Republik Iran bestraft. Eine eventuell im Ausland verbüßte Strafe soll nach Aussagen von Vertretern der Justiz bei der Strafzumessung im iranischen Verfahren aber Anrechnung finden.“ (AA, 3 March 2004, p. 20-21)
In practice, there are no cases of double conviction known to the AA and the embassies of 9 other listed countries:
“Diese Gesetzeslage scheint in der Praxis aus verschiedenen Gründen kaum dazu zu führen, dass es tatsächlich zu Fällen von Doppelbestrafung kommt. Dem Auswärtigen Amt sind keine konkreten Fälle bekannt. Auch den Vertretungen Australiens, Dänemarks, Frankreichs, Großbritanniens, Kanadas, der Niederlande, Norwegens, Schwedens und der Schweiz in Iran sind keine solchen Fälle bekannt geworden, obwohl die meisten dieser Staaten in der Vergangenheit bereits Straftäter nach Iran zurückgeführt haben.“ (AA, 3 March 2004, p. 20-21)
However, if the Iranian authorities take notice of the crime, there is a higher chance of double prosecution if the crime is of special interest to the authorities, for instance if the victim was an Iranian citizen or if the the image of Iran abroad was affected in a negative way.
„Anders könnte sich die Lage darstellen, wenn der Inhaftierte von der iranischen Botschaft oder einem iranischen Generalkonsulat in Deutschland betreut wurde, und die iranischen Behörden in diesem Zusammenhang von der Straftat Kenntnis erlangt haben, oder wenn den iranischen Behörden im Zusammenhang mit der Rückführung entweder direkt mitgeteilt oder durch die Umstände der Durchführung der Rückführung nahegelegt wird, dass es sich bei der Person um einen Straftäter handelt. Selbst wenn die iranischen Behörden von dem Delikt Kenntnis erhalten, erscheint eine erhöhte Wahrscheinlichkeit der erneuten Verfolgung nach bisheriger Erfahrung allenfalls bei Fällen gegeben, die aus iranischer Sicht von besonderer Bedeutung sind, so z; B.: in Fällen, in denen ein iranischer Staatsangehöriger Opfer einer Straftat ist und er selbst oder seine Familie diese in Iran zur Anzeige bringt, in Fällen, in denen die Tat selbst oder jedenfalls ein Teil derselben in Iran begangen wurde (z.B. Nutzung von Iran als Transitland bei Drogenschmuggel), bei schwerwiegenden Fällen, die in der deutschen Öffentlichkeit besonderes Aufsehen erregt haben und daher aus iranischer Sicht das Bild Irans im Ausland beschädigt haben.“ (AA, 3 March 2004, p. 20-21)
In its response IRN34102.E of 22 March 2000, the Canadian Immigration and Refugee Board (IRB) gives the following information on possible legal consequences for an Iranian who has been convicted outside Iran for trafficking heroin:
“A professor of political science specializing in Iran at Spring Hill College in Mobile, Alabama, stated on 17 March 2000 that If a person has been convicted outside Iran of selling 75 grams of heroin and served a prison sentence outside Iran for it, he/she is not liable to be tried or punished in Iran. However, if such a crime involved an Iranian interest, then "double jeopardy" does not apply, and that person may be tried for the same offense in Iran. But in the scenario you described, such a person will not be normally tried in Iran upon his/her return to that country. However, an Iranian lawyer based in London stated on 20 March 2000 that Iranian law is not completely clear on the above question, adding that: Before the change of the Penal Code of Iran, Article 3 (4) of the Code read as follows: "Any Iranian who commits a crime outside Iran and is found in Iran will be punished in accordance with Iranian Penal Laws provided: (3) He has not been tried and acquitted or in the case of conviction the punishment has not been enforced." But the Islamic Penal Code (currently in force) does not contain such a provision, although its Article 7 reads as follows: "Any Iranian who commits a crime outside Iran and is found in Iran shall be punished according to the Islamic Penal Code." On the other hand there are provisions in the newly adopted Criminal Procedure Code according to which the Iranian Courts, in my opinion, will not have jurisdiction to try a matter which had occurred outside Iran. These provisions are set out in Article 15 of the Code. According to them the Iranian courts will discharge their duties only with regards to crimes which have happened in the locality of their jurisdiction. According to the above and principles of the Criminal Law the Iranian courts, in my opinion, should not take jurisdiction in the matter.” (IRB, 22 March 2000)
In another response, IRN33967.E of 28 February 2000, the IRB comments on the question whether it is possible for the Iranian authorities to find out if a deported refugee claimant has a drug-related conviction in Canada:
“According to a constable at the Interpol office of the Royal Canadian Mounted Police, Iran is a member country of the Interpol Network. Accordingly, requests from Iranian authorities are not treated any differently than requests from other nations. Therefore, Canadian criminal history records are accessible to the Iranian police officials via regular Interpol procedures.” (IRB, 28 February 2000)
In the November 2001 Final Report on Iran of the 7th European Country of Origin Information Seminar (11 - 12 June 2001), ACCORD discusses the question of double conviction in the context of drug offences in Iran:
“Iran has a very strict policy with regard to drug offences. Drug-related crimes are examined and investigated by the Revolutionary Courts. The Iranian authorities have regularly declared that Iranians who were convicted outside of Iran for crimes punishable under Islamic Law, could still be prosecuted upon return. However, UNHCR has not been able to find any jurisprudence confirming sentences for persons convicted of drug-related crimes abroad. UNHCR also does not possess any information on the degree of double conviction upon return for persons convicted of drug-related crimes outside of Iran. Amnesty International has had one case of double conviction for drug offences. If a person carries more than 30 grams of heroine or 5 kg of opium s/he is subject to the death penalty. In Spain, an Iranian national was caught smuggling drugs. AI International Secretariate in London responded to a query from Amnesty International Spain that he would in principle be at risk of double prosecution. It, however, depended on the documentation that existed on the individual’s case. The person could perhaps return without problems by stating that he had just tried to immigrate to Spain.” (ACCORD, November 2001)
The German Orient Institute (Deutsches Orient-Institut, DOI) concludes in a written statement of September 2003 to the High Administrative Court in Hamburg, Germany, that despite diligent research they were unable to find materials or indications on additional punishment upon return for those Iranians, who had served long prison terms in Germany. According to the DOI, neither Iranian law nor general Islamic law do prohibit double convictions. Yet, the DOI cites a number of cases where Iranians who had been convicted for drug-related and other offences in Germany had been quite unafraid of returning to Iran and later going back to Germany. However, the DOI, referring to a "Communication No 692/1996", regards as plausible the assessment of an Iranian lawyer provided to the Australian embassy who suggested that double conviction was only possible if the penalty incurred abroad was considered far too lenient by the Iranian authorities. (DOI, 30 September 2003, p. 1-4)
The above-mentioned "Communication No 692/1996" is actually an adoption of views by the CCPR - Human Rights Committee of 11 August 1997 on a complaint submitted by an Iranian asylum seeker at risk of deportation from Australia.
"4.6 The State party notes that it has, through its embassy in Teheran, sought independent legal advice on the specific circumstances of the author from a lawyer practicing in Iran. The advice given was that it is very unlikely that an Iranian citizen who already has served a sentence abroad for a (drug-related) offence will be retried and resentenced. The only possibility of this occurring would be where the penalty incurred abroad is considered far too lenient by the Iranian authorities; these would not consider a six year sentence as too lenient." (CCPR, 11 August 1997, para 4.6)
Furthermore, a decision by the European Commission of Human Rights of January 1997 on the admissibility of an application by an Iranian national in the UK, that later resulted in a friendly settlement and the revokation of the deportation order against the asylum seeker, contained the following statements:
"By letter dated 22 November 1993 Amnesty International informed the applicant’s legal representatives of the current position in Iran. [...] The letter concluded that "given the arbitrary nature of justice in Iran and the ongoing anti-drug campaign, it is our view that the possibility of those returning to Iran following conviction abroad for drug-related offences being subjected to double jeopardy cannot be ruled out". [...]
In this respect, the Government submit, inter alia, that other countries have sent back serious offenders to Iran who have not thereafter been subjected to the treatment the applicant suggests awaits him and that certain persons granted refugee status by the United Kingdom have voluntarily returned to Iran with no reported adverse consequences. The Government do not accept that the Amnesty reports referred to by the applicant indicate a real risk for the applicant of "double jeopardy" or that the grant of refugee status or the applicant’s long absence from Iran with that status would result in particular interest being shown by the Iranian authorities in the applicant on his return." (ECHR, 16 January 1997)
“The concept of criminal law in Iran differs from the notion of common law or other types of Western legal systems not just because it is religiously derived but because in many instances the subject of law is the victim’s family. For example, murder is viewed not as an offense against society, as is the case in Western societies, but as a crime against the victim’s family. The punishment for murder, therefore, is designed to not only deter crime but to “compensate” the family of the victim. Hence, retribution and “blood money” have been an integral part of Iran’s Islamic punishment for murder. This, in effect, is akin to the concept of wergeld practiced by Western European nations from the fifth century to the advent of feudalism in the ninth century.
Qisas crimes include murder, manslaughter, battery and mutilation. The Islamic law regards such offenses as acts against the victim and his family and allows for “inflicting on a culprit an injury exactly equal to the injury he inflicted on his victim.”[14] The decision to inflict retribution on the culprit rests with the victim, and the victim’s family in case of murder. Although retribution in kind and vendetta are allowed under the qisas crimes and punishment, it is important to note that both the Qur’an and the Iranian penal code recommend forgiveness, as the act of forgiving pleases God.
Diyat punishment is not strictly a separate category of punishment under the Islamic law. It refers to a form of compensation, or blood money, which is to be paid to the victim or his family as reparation for an injury or murder. In other words, diyat becomes a form of punishment if a victim or his family (in the case of unintentional manslaughter) chooses to forgo their right of retribution under qisas and instead demand blood money from the perpetrator of the crime. The Iranian penal code has extensively codified the nature of diyat for various types of crimes and in each case has specified the time element required in the payment of diyat.”
“Reshadati demanded that the agent be sentenced in line with article 616 of Iran’s penal code, which stipulates that "quasi-intentional murder" carries a sentence of one to three years’ imprisonment and the payment of blood money to the family of the victim if it is requested.”
“[...] But what has attracted the attention of Iranian newspapers and human rights activists is the death penalty sentence handed down in previous rulings. Under Iran’s laws that determine compensation, a woman’s life is worth half that of a man’s life. As a result, the killers’ lives are worth more in financial terms than the murdered girl. Bizarrely, Fathi’s family was required to come up with thousands of dollars to pay the "blood money" for the execution of their daughter’s killers. The concept of enforcing blood money provisions for criminal punishment appears to be unique to Iran, according to Islamic legal experts. In other Islamic countries that use Sharia law as a basis for the legal code, blood money is carried out but only in compensation and inheritance cases and not for criminal sentences.”
“Wilful murder, the deliberate killing of another human being, is considered a crime in the criminal law of Iran and Islam, and the consequential penalty invoked is retaliation. The offence, as in English law, requires proof of both actus reus (external element) and mens rea (fault element). The statutory offence may be found in Articles 14 and 204-268 of the 1991 version of the Islamic Penal Code and in Articles 612-615 of 1996 Code. In Islam there are many verses and precedents (of the Prophet and the Shiite Imams) condemning the crime of murder as illegal and retaliation as the appropriate punishment for this crime provided the legal elements are established. The requisite elements of the offence have been subjected to varied review in Iran and Islam. [...] Retaliation as a punishment has three key aspects: it is personal; it should be equal with the crime; and to be performed according to the will and option of the avengers of blood.
„The principle of qisas requires that the nature and severity of the punishment should be equivalent to that of the offense. Therefore, the qisas punishment for murder is death. However, in some cases the penalty may be replaced by the payment of blood money (diyah) to the family of the victim.“
“Death penalty and other cruel, inhuman and degrading punishments
At least 108 people were executed, often in public. The death penalty was carried out on long-term political prisoners, apparently to intimidate political or ethnic groups such as Kurds and Arabs.
At least 197 people were flogged or sentenced to be flogged, often in large groups. At least 11 people were sentenced to have fingers and limbs amputated as judicial punishments. The total figures may have been considerably higher.
In March, EU officials were reportedly informed that the Head of the Judiciary had called on judges not to pass sentences of stoning and to find alternative punishments. Nevertheless, in November, four men in Mashhad, northeastern Iran, were sentenced to death by stoning in connection with allegations of rape and adultery.
Stays of execution were announced in the cases of two women, Afsaneh Nourouzi and Kobra Rahmanpour, who had been sentenced to death for murder. Both said they had been acting in self-defence. The stays of execution were announced following widespread public opposition to the sentences.
In February, long-term political prisoner Sasan Al-e Ken’an, a supporter of the banned Komala party, was executed. At the time of his execution his mother was in Tehran seeking a meeting with members of the UN Working Group on Arbitrary Detention (WGAD) who were visiting Iran. On her return home to the town of Sanandaj, she went to visit her son in prison. She was informed that he had been hanged and told not to make a “fuss” but to bury him quickly.”
For the question of torture and prison conditions in Iran please refer to the following reports or search for the term “torture” (selected country “Iran”) on www.ecoi.net.
This Response was prepared after researching publicly accessible information currently available to the ACCORD within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.
ecoi.net wird vom Österreichischen Roten Kreuz (Abteilung ACCORD) in Kooperation mit dem Informationsverbund Asyl & Migration betrieben. ecoi.net wird durch den Asyl-, Migrations- und Integrationsfonds, das Bundesministerium für Inneres und die Caritas Österreich kofinanziert. ecoi.net wird von ECRE und UNHCR ideell unterstützt.
