Afghanistan

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Contents

Introduction

Brief History of Afghanistan

The Islamic Republic of Afghanistan (“Afghanistan”) is a country located on the continent of Asia. The capital city is Kabul and the national population is about 30 million people. The country has a majority Islamic population with very small pockets of less than 1% of Sikhs, Hindus and Jews. The official languages are Pashto and Dari. [1] The country is made up of 34 Provinces that function as administrative divisions. The country gained independence from the British in 1919.

Afghanistan has been plagued for the last couple of decades by civil wars and internal armed conflicts. There was a civil war from 1989 – 1992 and another from 1992 – 1996. President Mohammad Najibullah was defeated by the Taliban government who had support from the Pakistan and Saudi Arabia governments. The Taliban government was considered a brutal system and according to Physicians for Human Rights (PHR), "no other regime in the world has methodically and violently forced half of its population into virtual house arrest, prohibiting them on pain of physical punishment from showing their faces, seeking medical care without a male escort, or attending school.” [2] The devastation of the conflicts is estimated at over 400 00 from between 1990 to 2001.

It is believed that during the turmoil of the 1990s, al-Qaeda developed a stronghold in Afghanistan. When the September 11 attacks happened in the United States, the US believed that al-Qaeda and Osama bin Laden where responsible for the attacks. The United States requested that bin Laden be handed over, however after Afghanistan failed to comply, in October 2001 the United States and the United Kingdom launched Operation Enduring Freedom [3] and began actively working to remove the Taliban government from power. In December 2001, the Taliban was defeated as the ruling government and a government authority supported by the United Nations Security Council was placed in power. [4] At the request of the Afghanistan leaders, a United Nations mission was set up in Afghanistan, the United Nations Assistance Mission in Afghanistan (“UNAMA”) in 2002. The mandate of UNAMA is renewed on an annual basis and was recently renewed ion March 17, 2017 with the mandate to continue providing the assistance as to the needs of Afghanistan.[5]

The last elections in Afghanistan were held in 2014 where President Ashraf Ghani gained power. The elections were plagued with allegations of voter fraud resulting in the ballot boxes being audited. [6] The instability and political strife led to political negotiations between the presidential candidates and resulted in the creation of a national unity government headed by President Ashraf Ghani, with runner-up Abdullah Abdullah taking up the post of chief executive officer, a newly created post. The newly created Afghanistan National Unity Government (“NUG”) is rife with challenges and political infighting that affect the ability of the country to run smoothly and deal with pressing issues. [7] The NUG was meant to assist in fostering democracy in the country through the power sharing structures.

Despite its progress in democratic systems, Afghanistan is still plagued with conflict and the ever-looming threat of the Taliban and growing terrorist organizations within and outside the country. This had led to an overall defunct state that is riddled with human rights violations. Amnesty International reports that despite any progress made, there is still widespread violence, including indiscriminate attacks on civilians by armed insurgent groups; armed insurgent groups’ killings of persons affiliated with the government; torture and abuse of detainees by government forces; widespread disregard for the rule of law and little accountability for those who committed human rights abuses; and targeted violence of and endemic societal discrimination against women and girls. [8]

According to the Human Rights Watch 2017 Country Report for Afghanistan “fighting continued between Taliban and government forces in Afghanistan in 2016, thousands of civilians were killed and injured in insurgent suicide and IED attacks. The Taliban claimed responsibility for many of these, but groups affiliating themselves with the Islamic State (“ISIS”) claimed several particularly deadly attacks in Kabul.”[9]

Type of System (Common Law; Civil Law; Hybrid)

Afghanistan has a mixed legal system that consists of civil, customary and Islamic law. Some commentators have argued that Afghanistan does not have a uniform legal system. [10] Different parts of the country apply different laws, mostly shari’a law that is based on various interpretations. The metropolitan areas are more likely to follow the government’s legislated law as compared to the rural parts of Afghanistan.

The Legal Aid Situation in the Country

The 2004 Constitution of Afghanistan enshrines the right to legal defense. Article 31 states “In criminal cases, the state shall appoint a defense attorney for the indigent”[11]. Article 19 of the Interim Criminal Procedure Code reiterates this right by obliging the government to provide legal defense for those who cannot afford it. The Afghanistan Independent Legal Aid Board (“AILAB”) was established under the provisions of the Legal Aid Regulations.[12] Since its inception in December 2008, AILAB assumed the responsibility of regulating and administering nationwide legal aid services and coordinating the activities of relevant legal aid providers in Afghanistan.[13] The Ministry of Justice regulates the Legal Aid Board, which is meant to fund legal costs for indigent defendants An indigent defendant has the right to consult with an advocate or counsel at public expense when resources allow.[14] This right was applied inconsistently, in large part due to a severe shortage of defense lawyers. [15]

Sources of Defendants' Rights

National Sources of Defendant’s rights

The present Constitution of Afghanistan was agreed upon by more than 500 delegates representing Afghan men and women from across the country at the Constitutional Loya Jirga (December 13, 2003 - January 4, 2004). [16] The Constitution was formally ratified by President Hamid Karzai at a ceremony in Kabul on January 26, 2004.

The reconstruction of a legal system in post-conflict Afghanistan has required understanding of the local customary and religious laws. In Afghanistan, the need for such understanding is particularly acute because customary laws, de facto govern the lives of a majority of the population.[17] It should be noted that Islamic Law guides all aspects of Afghan criminal law, particularly the Criminal Penal Code and its individual statutes.[18]

The primary source of criminal law in Afghanistan is Islamic Law. [19] The Penal Code [20] defers to Islamic Law in compliance with Article 3 of the Constitution which states that: “No law shall contravene the tenants and provisions of the holy religion of Islam in Afghanistan.”

There are clear provisions for the division of Islamic laws and the Penal Code. Article 3 of the Constitution states that “No law shall contravene the tenants and provisions of the holy religion of Islam in Afghanistan”. The Stanford Afghanistan Legal Education Project explains the division of the laws as follows: “1. If an act is enumerated as a crime under both Islamic Law and the Penal Code, the provisions of the Penal Code will be implemented, as long as they do not contravene the tenants of Islam. 2. If an act is a crime under the Penal Code, but not under Islamic Law, the Penal Code’s provisions will be implemented. 3. If an act is not a crime under the Penal Code, but is a crime under Islamic Law, the provisions of Islamic Law apply”. [21]

Criminal charges based on both Islamic Law and the Penal Code are prosecuted in the Primary Courts. Therefore, it is extremely important that prosecutors, defense attorneys, and judges know both the law of the Penal Code and the provisions of the Hanafi school of Islamic jurisprudence. The Hanafi is considered as the most dominant thought of Islamic legal interpretation. [22] The Constitution in article 130 provides that in cases not explicitly covered by the provisions of the constitution or other laws, courts may, in accordance with Hanafi jurisprudence and within the limits set by the constitution, rule in a manner that best attains justice in the case.

International sources of defendants’ rights

Afghanistan is a signatory to some international provisions that protect the rights of individuals in trails. Namely International Covenant on Civil and Political Rights [23] and the Convention Against Torture.[24]

Structure of the Courts

The Supreme Court constitutes the highest authority of the judiciary of the Islamic Republic of Afghanistan. Under Articles 117 and 118 of the Constitution the Supreme Court is composed of nine persons appointed by the president in an agreement with Wolesi Jirga (house of people). It is uncertain to what extent courts exist and function outside Afghanistan's main cities. It is equally uncertain what vision of law and human rights informs Afghanistan's judiciary and how the judiciary perceives its own role in the development of Afghanistan's legal system.[25]

In Afghanistan, Article 116 of the Constitution provides that the judiciary must be independent. However, this has proved to be a difficult task as the judiciary is “underfunded, understaffed, inadequately trained, ineffective, and subject to threats, bias, political influence, and pervasive corruption.”[26] Bribery is reported as prevalent and fear of retribution in rendering unfavorable decisions has also been reported. [27] Most courts administered justice unevenly, employing a mixture of codified law, sharia, and local custom. Traditional justice mechanisms which have been the dominant dispute resolution mechanism remain the main recourse for many, especially in rural areas. These mechanisms consist of informal courts whose authority is consented to by the parties and whose decisions are based on interpretation of religious script.[28] There was varying adherence to codified law, with courts often disregarding applicable statutory law in favor of sharia or local custom.[29] These courts have been criticized by international human rights organizations, especially in the manner in which they deal with crimes involving women.[30]

In 2013 a new law organizing the judiciary weakened the Control and Monitoring Department of the Supreme Court. The existing department had been considered effective in dealing with corruption within the judiciary in the districts and provinces. The new law eliminated some of the department’s key positions and its authority to conduct investigations, make arrests, and prosecute violators.[31]

Pre trial Procedures

Arrests

The constitution of Afghanistan states that one can get arrested only if he or she personally commits a crime: “Crime is a personal act. Investigation, arrest and detention of an accused as well as penalty execution shall not incriminate another person.”[32]

The Interim Procedural Code (hereinafter ICCC) of 2004 specifies circumstances according to which the police can arrest a person who:

(1a) […] is caught in flagrante delict [red-handed] of misdemeanors, punished by medium term imprisonment, or felony;

(1b) […] is allegedly the author of a felony and there is a risk of his disappearance.

(2) In all other circumstances, the judicial police perform arrests only in execution of orders of the judicial authorities.[33]

After making the arrest and verifying the suspect's identity, the police have 24 hours to inform the suspect of the reason for the arrest and its circumstances,[34] and to turn him or her over to the Attorney General Office Prosecutor (or the "Primary Saranwal"; hereinafter prosecutor). However, the Police Law of 2005 allows the police to hold a suspect in custody for up to 72 hours in order to "comprehensively detect the crime and criminal."[35] With court approval the investigating prosecutor may continue to detain a suspect while continuing the investigation, with the length of continued detention depending on the severity of the offense. The investigating prosecutor may detain a suspect for up to a maximum of 10 additional days for a petty crime, 27 days for a misdemeanor, and 75 days for a felony. The prosecutor must file an indictment or release the suspect within those deadlines, and no further extensions of the investigatory period are permitted if the defendant is in detention. However, prosecutors often ignored these limits.[36]

The article 27 of the Constitution prohibits arbitrary arrest or detention, but both remained serious problems. Authorities detained many citizens without respecting essential procedural protections.[37] According to NGOs, law enforcement officers continued to detain citizens arbitrarily without clear legal authority or due process. Local law enforcement officials reportedly detained persons illegally on charges not provided for in the penal code.[38]

Police and legal officials often charged women with intent to commit zina (extramarital sexual relations) to “justify their arrest and incarceration for social offenses, such as running away from home, rejecting a spouse chosen by her family, fleeing domestic violence or rape, or eloping.”[39]

Investigations

Once a suspect has been transferred from the police, the investigative prosecutor must decide whether to continue his or her detention[40] and has the authority to review the legality of the detention at all times.[41]

Once an accused is arrested, the prosecutor must interrogate the suspect within 48 hours of the suspect’s arrival.[42] Afterwards, the prosecutor has the authority to keep the suspect in custody for 15 days from the date of the arrest in order to conduct an investigation, and may request an additional 15 days from the court.[43]

Whenever the judicial police have good reasons to believe that an urgent action is needed in order to preserve evidence, they can initiate a preliminary investigation that might include:[44]

  1. Personal risk or searches of premises and other places;
  2. Seizures of objects and documents;
  3. Inspection of persons or places, including the taking of photos;
  4. Requesting the assistance of experts for performing activities which require special professional qualification.

Indictment

At the end of the investigation phase, the prosecutor must determine whether there is enough grounded evidence to suggest that the suspect committed a crime. If the evidence is sufficient, the prosecutor must file an indictment.[45] Otherwise, he must dismiss the case.[46] The decision to dismiss a case can be appealed to the court within 10 days by the victim or a higher-ranking prosecutor.[47] The court will either affirm the prosecutor's decision or rule that an indictment should be filed.[48]

If an indictment is filed, the suspect can remain in detention for an additional 9 months while the case exhausts the formal court system – from the primary trial (two months) to the Court of Appeals (two months) and the Supreme Court (five months).[49] However, a new law enacted in 2013 allows the Supreme Court unlimited time to review criminal cases.[50] Pursuant to the ICPC of 2004, the detainment facility administration must inform the court, in writing, 15 days before the end of the 9 months additional detention period.[51] If there is no reply from the court, the accused must be released from detention.[52] In practice, however, releases do not occur pursuant to the law.[53]

Interrogation

In terms of Article 30 of the Constitution, evidence obtained through compulsion is invalid:

"A statement, confession or testimony obtained from an accused or of another individual by means of compulsion shall be invalidated. Confession to a crime is a voluntary admission before an authorized court by an accused in a sound state of mind."

However, due to the ongoing armed conflicts, all those who are suspected and accused of being politically opposed to the government are often victims of harsh interrogation techniques.[54] These forms of interrogation easily goes unchecked as their cases often fail to make it before the courts for consideration because of the slow systems and struggles of governing that Afghanistan is currently going through. Meaning, there is rarely an opportunity for a court to evaluate the totality of the case, including the arrest, the methods of interrogation used and whether the initial detention was legally permissible. According to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan Mendez “It is… of great concern that there appears to be a practice of torture and ill-treatment to elicit confessions of suspects, in particular for national security cases.”[55]

Right to Counsel

Every individual has the right to a defense attorney upon arrest in terms article 31 of the Constitution, and in criminal cases, the state must appoint a defense attorney for the indigent. All conversations, communications, and correspondence between the accused and the attorney are protected by an attorney-client confidentiality.[56] The full enjoyment of the right to counsel is severely hindered by all the administrative red tape and corruption in the system. Criminal defense attorneys have reported that the government officials have little respect for the law or the important role of criminal defense lawyers in trials. Some defense attorneys have even reported being intimidated and threatened by law enforcement officials. [57]

Rights of the accused at all time

There are several fundamental rights granted to all individuals by the Afghan Constitution, including those who are accused of committing a crime. Those rights are located at Chapter two of the constitution.

Criminal Law System

Legality principle

A person could not be prosecuted for an act unless a law criminalizing that act existed prior to the commitment of the act.[58]

Presumption of Innoncence

Article 25 of the Penal Code declares that "the accused shall be innocent until proven guilty by the order of an authoritative court".[59]

Bail

Article 34 (2) of the ICPC provides that the prosecutor may release an accused on bail in circumstances where it is unnecessary to keep them detained.

Capital Punishment

Capital punishment is permitted in Afghanistan in terms of Article 97 which permits capital punishment and Article 98 which directs that hanging shall be the method of used. The question of which crimes are punishable is complex due to the fact that Article 1 of the Penal Code states that Afghanistan laws are in terms of Sharia’a law which sanctions capital punishment.[60] A variety crimes based on Islamic law are punishable by death, including murder, apostasy, homosexuality, rape, terrorism and drug trafficking. In practice, however very few cases have led to capital punishment at the hands of the State. This is partly due to the international pressure as well as disagreements as to which crimes under Sharia’a law carry the death sentence.[61] In the past, children as young as 7 have been executed, as in the case of a boy who was accused of spying on the Taliban.[62] More recently there has been a decline in capital punishment. A number of international organizations have called upon the Afghanistan government to amend its laws.[63]

Fair Trial Rights

The right to a fair trial is enshrined in Article 26 of the Constitution. However, this is often not respected in practice. Prosecutors rarely informed defendants promptly and in detail of the charges brought against them.[64] Citizens are often unaware of their constitutional rights.[65] Defendants and attorneys are entitled to examine physical evidence and documents related to a case before trial, although observers noted court documents often were not available for review before cases went to trial, despite defense lawyers’ requests.[66]

In 2016 there were some accused who were executed in the absence of a fair trial, in violation of Afghanistan’s laws and the ICCPR. The executions raised some international outcry [67]

Freedom From Persecution and Torture

According to article 29 of the Constitution, persecution of a human being is prohibited. The same clause also declares that torture is illegal, even if made for the purpose of discovering the truth in an investigation, and even if directed to a person who was already convicted.[68]

Although the constitution prohibits such practices, there were reports government officials, security forces, detention center authorities, and police committed abuses. [69]NGOs reported security forces continued to use excessive force, including torturing and beating civilians.[70] A former prisoner in Kandahar alleged that a government official had personally tortured him in 2007 and that subsequent to his detention and mistreatment he joined the Taliban.[71]

Right to appeal

Both the accused and the state have the right to appeal the verdict in a case. Article 14 (5) of the ICCPR guarantees the right to appeal. Article 5 of Law on Organization And Jurisdiction Of Courts Of The Islamic Republic Of Afghanistan also states that parties have a right to appeal their cases from lower courts to higher courts. It is notable that an accused who has been acquitted by a lower court often remains in detention until the appeals procedure has been finalized.[72] Chapter 9 of the Interim Criminal Code for Courts details the laws concerning appealing a decision. In article 64 (4) the Code states that if the appeal deadline of 21 days from the date of receipt of the decision is not met, the previous decision stands. In many cases courts did not meet these deadlines, but detainees nevertheless remained in custody until the State appeals the acquittal, sometimes well beyond the 21 day limit.[73]

Rights in prison

Human Rights Watch reported harsh and sometimes life-threatening conditions and abuse in official detention centers.[74] The General Directorate of Prisons and Detention Centers (GDPDC), part of the Ministry of Interior, has responsibility for all civilian-run prisons (for both men and women) and civilian detention centers. International human rights organizations alleged police, including specifically Kandahar Provincial Chief of Police Abdul Raziq, “set up secret or undeclared detention facilities specifically to avoid international monitors.”[75]

The Law on Prisons and Detention Centers (“LPDC”), enacted in 2005, governs all detention centers and prisons in the country. Its purpose is to ensure the rights of detainees and prisoners.[76] According to the LPDC, all prisoners should be treated equally, "irrespective of their tribe, citizenship, religion, race, color, gender, language and social and political status, etc."[77]

Conditions of confinement

The suspect and the accused must be held in detention center located within the province in which their case is under legal process.[78]

Those who were already sentenced to imprisonment shall be held in a prison located close to their home, unless the LPDC specified otherwise.[79] Prisoners are supposed to stay in one facility throughout their entire imprisonment period. If the prisoner's family change their address, the Minister of Justice may approve the transfer of the prisoner closer to their new residence.[80]

Overcrowding in prisons is a serious, widespread problem; 28 of 34 provincial prisons for men were severely overcrowded based on standards recommended by the International Committee of the Red Cross.[81] In October 2014, President Ghani visited Pul-e Charkhi prison to meet with prisoners and review prison conditions, after which he spoke in favor of prison reform and an accelerated judicial process for prisoners awaiting sentencing.[82]

Despite the challenges, in 2015 the United Nations commended the Afghan government for making progress with attempting to deal with the challenges of torture in detention facilities and create better systems.[83] In early 2015 President Ghani launched a national action plan to eliminate torture, however, there was no progress on implementation through 2016, and the government did not make public information on investigations into cases of torture.[84] Arrested person have sometimes resolved to hunger strikes as a cry for help from the conditions of their incarceration.[85]

Living Conditions

According to Article 24(1) LPDC, the administration must supply proper hygienic equipment and observe environmental sanitation.[86] Bed and bedding must be provided to all prisoners and detainees, pursuant to Article 24(2) LPDC.[87] These regulated living conditions are far from the reality of most prisoners who are forced to live in cramped and unsanitary conditions.[88]

Feeding

Article 25(1) LPDC mandates that detainees and prisoners must be provided with proper and health food and water.[89] Under Article 25(2) the quality and quantity of the food should be supervised by the Minister of Health.[90] In practice, however, the situation is very different. Prisoners are not regularly fed as a part of a system-wide problem in how the prisons are run.[91] The situation is exacerbated by the ongoing armed conflict which opens space for the government to flout some of the protections guaranteed in the constitution.

Right to medical care in prison

Detentions centers and prisons are required to provide the detainees and prisoners with free health services.[92]

Mental health care

The mentally ill shall be kept in the health centers of the detention centers and prisons. In the absence of such health centers, they shall be kept in a special medical room.[93]

Restriction of rights

The rights given to the prisoners according to the LPDC cannot be restricted, unless the decision to derogate from those rights was made by the Mister of justice. The minister has the authority to make this decision when the "order, discipline and security of the detentions center or prisons are in jeopardy.”[94]

In exceptional cases and in order to prevent possible risks, the restriction could be ordered by the prison's superintendent, provided that he will receive the approval of the General Director of the prisons and that of the Minister of Justice within the next 24 hours.[95]

Women’s rights in prison

The LPDC regulates how women should be treated whilst in prison. Pregnant women shall be kept in the health centers of the detention centers and prisons. In the absence of such health centers, they shall be kept in a special medical room.[96] Article 25 of LPDC states that special prisoners, such as pregnant women, should be fed according their needs.

In terms of Article 56 of LPDC, children younger than age seven may live in prison and their mothers are allowed to visit them daily. After the age of 7, the children are placed either in the care of their father or a government home. This practice, however, became less prevalent after the GDPDC increasingly utilized children’s support center programs. Reports indicated children placed in the support centers received a better level of education and health services than in prisons. [97]

References

  1. http://www.afghan-web.com/facts.html
  2. Physicians for Human Rights, The Taliban's War on Women. A Health and Human Rights Crisis in Afghanistan, available at https://www.law.georgetown.edu/rossrights/docs/reports/taliban.pdf
  3. http://www.cnn.com/2013/10/28/world/operation-enduring-freedom-fast-facts/
  4. Richard Kraemer, Towards State Legitimacy in Afghanistan, 65 Int'l J. 637, 652 (2010)
  5. https://unama.unmissions.org/sites/default/files/resolution_2344_2017_english.pdf
  6. United States Bureau of Democracy, Human Rights and Labor Country Reports on Human Rights Practices for 2015, available at https://www.state.gov/documents/organization/253169.pdf
  7. International Crisis Group (ICG), Afghanistan: The Future of the National Unity Government, 10 April 2017, Asia Report 285, available at: http://www.refworld.org/docid/58eb9abe4.html 
  8. https://www.amnesty.org/en/countries/asia-and-the-pacific/afghanistan/report-afghanistan/
  9. https://www.hrw.org/world-report/2017/country-chapters/afghanistan
  10. Dr. Martin Lau Afghanistan’s Legal System and its Compatibility with International Human Rights Standards International Commission of Jurists available at http://www.refworld.org/pdfid/48a3f02c0.pdf
  11. The Constitution of the Islamic Republic of Afghanistan
  12. Published in the Official Gazette (Number 950) of the Ministry of Justice http://www.ailab.af/
  13. http://moj.gov.af/en/page/7943/7944/7951
  14. Id
  15. supra note 6
  16. http://www.nyulawglobal.org/globalex/Afghanistan1.html#_edn2
  17. Supra note 6Supra note 6
  18. https://www-cdn.law.stanford.edu/wp-content/uploads/2015/12/Intro-to-Crim-Law-of-Afg-2d-Ed.pdf
  19. Id
  20. The Penal Code of Afghanistan of 1976 available at http://www.refworld.org/pdfid/4c58395a2.pdf
  21. Afghanistan Legal Aid Project, An Introduction to the Criminal Law of Afghanistan, STANFORD LAW SCHOOL, 2012 available at https://www-cdn.law.stanford.edu/wp-content/uploads/2016/03/ALEP-Criminal-Law-2d-Ed_English.pdf
  22. Kamali, Mohammad, Hashim. Shari’ah Law: An Introduction. Oxford: Oneworld Publications, 2008.
  23. Ascended on 24 January1983
  24. Ratified 1 April 1987
  25. Supra note 5
  26. Supra note 3
  27. Id
  28. Julia Pfeiffer, Traditional Dispute Resolution Mechanisms in Afghanistan and their Relationship to the National Justice Sector, Law and Politics in Africa, Asia and Latin America, 44, 81 -98 (2011)
  29. Id
  30. U.N.A.M.A. and U.N.H.C.R., Justice through the Eyes of Afghan Women: Cases of Violence against Women Addressed through Mediation and Court Adjudication, (2015) available at: https://unama.unmissions.org/sites/default/files/unama_ohchr_justice_through_eyes_of_afghan_women_-15_april_2015.pdf
  31. Bureau of Democracy, Human Rights, And Labor. 2015 Country Reports on Human Rights Practices: Afghanistan 2015 Human Rights Report, https://www.state.gov/documents/organization/253169.pdf
  32. Article 6 of the Constitution
  33. Article 30, ICPC (2004)
  34. Article 31, ICPC (2004)
  35. Article 25, the Police Law (2005)
  36. Supra note 6,
  37. UN Assistance Mission in Afghanistan (UNAMA), Arbitrary Detention in Afghanistan: A Call For Action, Volume II - A Practical Guide to Understanding and Combating Arbitrary Detention Practices in Afghanistan, January 2009, available at: http://www.refworld.org/docid/49d07fc42.html 
  38. supra note 5
  39. Supra note 6
  40. ICPC, 33
  41. ICPC, 34(2)
  42. ICPC, 34
  43. ICPC, 36
  44. Article 32
  45. ICPC, 22 and 39(4)
  46. ICPC, 39(1)
  47. ICPC, 39(2)
  48. ICPC, 39(3)
  49. ICPC, 6(2)
  50. Law of the Organization and Authority of the Courts of the Islamic Republic of Afghanistan, Official Gazette No. 1109, 19 June 2013 (1392/4/9)
  51. ICPC, 6
  52. Law of prisons, 20(4)
  53. http://touchpointidg.com/wp-content/uploads/2015/01/3.2-Process-of-Criminal-Case_FEB_2014.pdf
  54. Supra note 6
  55. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=19941&LangID=E#sthash.Ga5kj2JP.dpuf
  56. Constitution, 31
  57. Supra note 3
  58. Constitution, 27
  59. Constitution, 25
  60. Article 1 of the Penal Code “The law regulates the “Ta zeeri” crime and penalties. Those committing crimes of “Hodod”, “Qessass” and “Diat” shall be punished in accordance with the provisions of Islamic religious law (the Hanafi religious jurisprudence).”
  61. Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, American Trust Publications (1982).
  62. Mattiullah Mati, Officials: Taliban Executes Boy, 7, for Spying, CNN, June 2010 available at http://www.cnn.com/2010/WORLD/asiapcf/06/10/afghanistan.child.execution/index.html
  63. http://www.irinnews.org/report/88687/afghanistan-unofficial-moratorium-capital-punishment
  64. Supra note 6
  65. Id
  66. Id
  67. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx
  68. Constitution, 29
  69. https://www.hrw.org/news/2015/11/15/afghanistan-reject-indefinite-detention-without-trial see also, https://www.washingtonpost.com/world/asia_pacific/afghanistans-justice-system-is-moving-faster-maybe-too-fast/
  70. Supra note 2
  71. Gul Amir told Human Rights Watch: “At that time I was not really a Talib – this is Afghanistan so maybe my cousin will be Talib, but I saw the things [he did to] me and now I am.” Human Rights Watch interview with Gul Amir (pseudonym), a former prisoner, Kandahar, November 2012
  72. Supra note 6
  73. Supra note 6
  74. https://www.hrw.org/world-report/2016/country-chapters/afghanistan
  75. http://www.cnn.com/2012/09/04/world/asia/afghanistan-intelligence-chief/
  76. LPDC, 1(1)
  77. LPDC, 3(1)
  78. LPDC, 20(1)
  79. LPDC, 20(2)
  80. LPDC, 21
  81. https://www.icrc.org/eng/resources/documents/feature/2014/07-03-afghanistan-health-prison.htm
  82. http://www.afghanzariza.com/2014/10/09/president-ghani-visits-pulecharkhi-prison-promises-to-review-the-cases-of-prisoners/blog
  83. Supra note 67
  84. Supra note 6
  85. http://america.aljazeera.com/articles/2016/1/27/hunger-striking-prisoners-afghan-detention.html
  86. LPDC, 24(1)
  87. LPDC, 24(2)
  88. https://www.washingtonpost.com/news/checkpoint/wp/2014/10/28/heres-what-it-looks-like-in-afghanistans-largest-and-still-incomplete-prison/ see also, http://www.bbc.com/news/world-asia-26344398
  89. LPDC, 25(1)
  90. LPDC, 25(2)
  91. https://www.nytimes.com/2015/02/26/world/asia/abuse-of-detainees-remains-widespread-in-afghanistan-un-says.html?_r=0
  92. LPDC, 27(1)
  93. LPDC, 11
  94. LPDC, 4(1)
  95. LPDC, 4(2)
  96. LPDC, 11
  97. Supra note 6, see also, https://www.unodc.org/pdf/criminal_justice/Afghanistan_Female_Prisoners_and_their_Social_Reintegration.pdf