A/HRC/40/67 the executions had continued despite the amendment107 and in 2017 some special procedure mandate holders described ongoing executions as “conclusive proof of the failure of the 2013 amendments to stop the execution of individuals sentenced to death as children”.108 In the present section, the Special Rapporteur seeks to explain why article 91 has not been effective in stopping the executions. 2. Inconsistent and arbitrary assessments 61. In 2016, the Committee on the Rights of the Child expressed “serious concern” that decisions to exempt children from death sentences on the basis of article 91 assessments “are under the full discretion of judges”, and strongly urged the Islamic Republic of Iran to remove such discretion from the courts.109 The discretion given is particularly problematic because the criteria used for assessing “mental development” is undefined and subjective. In some cases, judges reportedly asked simple questions focused on whether the child knew that it was wrong to kill. In other cases, judges considered the child to be “mentally developed” as long as there was no evidence of mental health issues. Judges have also used measures such as assessing whether the defendant has grown body hair to confirm mental development. 110 62. In its comments, the Government stated that “the lack of understanding on the side of the defendant, of the nature of the committed crime or existence of doubt in his/her maturity and wisdom are stipulations and the terminology referred to in article 91 shall be carefully observed at the time of the judicial proceedings …”. The Government further noted that “the legislator, in article 91, approached the acceptance of criminal liability maturity and in a way, it has admitted that adolescent people under the age of 18 could have not reached mentally maturity and do not understand the nature of their act; there is doubt on their growth and perfection of mind; and thus, they may not be subject to hadd or qisas. Therefore, the reference of the law [to] those terms is important, because it helps the judge to reason on this basis and, instead of imposing severe penalties, such as hadd or qisas, determine, as per case and their age, the prescribed punishments.” 3. Inconsistent use and provision of expert advice 63. Article 91 of the Penal Code provides that “the court may ask for the opinion of forensic medicine or resort to any other method it sees appropriate in order to establish the full mental development”. The Committee on the Rights of the Child expressed serious concern that judges “are allowed but are not mandated to seek forensic expert opinion”.111 In some cases where expert opinion has not been requested, the child has been assessed by the judge as being mentally developed. For example, Omid Rostami, who was convicted of killing someone when he was 16 years of age, was executed in 2018 despite the failure of the District Court and the Supreme Court to request an expert opinion to assess his mental development. 64. When expert advice has been requested, an opinion has been sought from doctors working for the Iranian Legal Medicine Organization, a State institution. On numerous occasions, the Iranian Legal Medicine Organization has undertaken the assessment long after the crime was allegedly committed. Fatemeh Salbehi was convicted of killing her husband in 2008, when she was aged 17. She was sentenced to death and then afforded a retrial pursuant to article 91 in 2013. During the retrial, the Iranian Legal Medicine Organization concluded that she was mentally developed at the time of the crime, which had taken place five years earlier. She was executed. Similarly, child offender Abolfazl Sharahi was assessed as being mature one year after the alleged commission of the offence, and was subsequently executed. The Special Rapporteur suggests that it is impossible for a credible assessment to be made in such circumstances. The Special Rapporteur observes that there is a need to highlight the 107 108 109 110 111 CRC/C/IRN/CO/3-4, para. 35. See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21547&LangID=E. CRC/C/IRN/CO/3-4, paras. 35–36. Joint alternative report by civil society organizations, “Rights of the child in Iran”, March 2015, available at https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/IRN/ INT_CRC_NGO_IRN_19809_E.pdf. CRC/C/IRN/CO/3-4, paras. 35–36. 15