Afghanistan

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. 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.” 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 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. 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 . 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. 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 . 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 . 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.”

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. 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” . 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 . 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 .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. This right was applied inconsistently, in large part due to a severe shortage of defense lawyers.

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). 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. It should be noted that Islamic Law guides all aspects of Afghan criminal law, particularly the Criminal Penal Code and its individual statutes. The primary source of criminal law in Afghanistan is Islamic Law. The Penal Code 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”. 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 . 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 and the Convention Against Torture.

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.

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.” Bribery is reported as prevalent and fear of retribution in rendering unfavorable decisions has also been reported. 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. There was varying adherence to codified law, with courts often disregarding applicable statutory law in favor of sharia or local custom . These courts have been criticized by international human rights organizations, especially in the manner in which they deal with crimes involving women .

A 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.

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.” 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.”' 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, 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." 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. 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. 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.

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.”

Investigations

Once a suspect has been transferred from the police, the investigative prosecutor must decide whether to continue his or her detention and has the authority to review the legality of the detention at all times. Once an accused is arrested, the prosecutor must interrogate the suspect within 48 hours of the suspect’s arrival. 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. 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: 1. Personal frisk 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. Otherwise, he must dismiss the case. The decision to dismiss a case can be appealed to the court within 10 days by the victim or a higher-ranking prosecutor. The court will either affirm the prosecutor's decision or rule that an indictment should be filed. 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). However, a new law enacted in 2013 allows the Supreme Court unlimited time to review criminal cases. 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. If there is no reply from the court, the accused must be released from detention. In practice, however, releases do not occur pursuant to the law.

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. 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.”