12.2007 - Source: UN High Commissioner for Refugees

Overview on different courts, their duties and functions, and their regions of influence ("UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers") [ID 22290]

"Courts of appeal

Courts of appeal are being established in all provinces. They oversee the rulings and decisions of the primary courts and have the authority to correct, overturn, amend, confirm or repeal these rulings and decisions. They are also responsible for deciding on conflicts of jurisdiction between lower courts.

Primary courts

There are primary courts for five jurisdictional areas: Central Provincial Courts, Juvenile Courts, Commercial Courts, Family Issues Courts and District Courts. All criminal and civil cases must first be resolved in the appropriate primary court. If there is a complaint based on the procedures or rulings of a primary court, the case will be decided by the appropriate Court of Appeal, which may further refer it to the Supreme Court. A high number of cases are routinely appealed, which is considered by some experts as a significant obstacle to effective judicial functioning.

The Attorney General

The office of the Attorney General is an independent body, primarily responsible for investigations and prosecution. On 28 August 2006, President Hamid Karzai appointed Mr. Abdul Jabbar Sabit as the Attorney General of Afghanistan. Since his appointment, Mr Sabit has undertaken a campaign to tackle corruption. He has removed a number of senior prosecutors, and several provincial and district officials have been arrested and placed under investigation. Furthermore, the first woman Chief Prosecutor was appointed in the province of Herat. Despite these developments, further reaching institutional reforms of the Attorney General’s office are needed to increase efficiency in tackling corruption."

Document(s): Open document

14.08.2003 - Source: Amnesty International

Court structure: general courts and specialized courts ("Afghanistan: Re-establishing the rule of law") [#15047],  [ID 719]

"The Afghan courts have been established within the framework of the structure envisaged by the 1964 Constitution and other applicable laws.
The highest court in Afghanistan, the Supreme Court, sits in Kabul and is headed by the Chief Justice. The Supreme Court is constitutionally charged with the organisation and administration of the lower courts, including oversight of the judiciary. The Supreme Court is also responsible for nominating candidates for judicial appointment to the President. Within the Supreme Court, a Court of Cassation functions as an administrative Court of Appeal.
The High Court of Appeal is at the next level of the hierarchy underneath the Supreme Court. The High Court of Appeal, based in Kabul, has jurisdiction to hear appeals against decisions made by the Provincial courts.
Each administrative province in Afghanistan has one Provincial Court which has appellant jurisdiction over decisions made by the lower Primary Courts. Afghan law sets out that the Chief Justice is responsible for determining the number of Primary Courts in each province. There are currently 2,006 judges and approximately 3,000 prosecutors attached to the Afghan courts. It is reported that the courts have dealt with 5,310 criminal cases in the period April 2002-April 2003.

In addition to the general courts, Afghan law also provides for the establishment of specialized courts. However, some of the envisaged specialized courts, most notably, the Juvenile and Family Courts, have not been established outside of Kabul. In the absence of the Juvenile Courts, cases involving minors are being adjudicated under adult procedures. While the Provincial and Primary Courts are currently attempting to deal with a small number of family cases, judges currently lack the legal expertise necessary to ensure that these cases are dealt with in a fair and effective manner."

Document(s): Open document

14.08.2003 - Source: Amnesty International

Strong indications that the judicial appointment process has been marred with political manipulation and bias, including pressure from armed groups ("Afghanistan: Re-establishing the rule of law") [#15047],  [ID 721]

"Afghan judges are appointed by the President based upon the recommendation of the Chief Justice. The 1964 Constitution and the 1967 Law on the Jurisdiction and Organisation of the Courts set out the qualifications required for judicial appointment. According to the law, to be appointed as a judge, an individual must hold a degree from either the Faculty of Law or the Faculty of Sharia. In addition, she or he is required to have completed the one-year legal professional training and should be aged between 28 and 60. Despite the fact that the law clearly sets out the requirements for judicial appointment, there is evidence that many sitting judges do not hold the necessary qualifications and have exceeded the specified age limit.
There are strong indications that the judicial appointment process has been marred with political manipulation and bias, including pressure from armed groups. In interviews with Amnesty International, a number of senior judges expressed concern over the lack of properly qualified judges working in their courts and stated that this is a key problem currently undermining the effective administration of justice. While the full extent of the problem is unknown, in one provincial region a source in the judiciary claimed to Amnesty International that only around 20% of judges are properly qualified. Many judges interviewed by Amnesty International attributed the appointment of unqualified judges to political manipulation within the Supreme Court. Commenting on this problem, one senior judge asserted to Amnesty International that “the recruitment of judges by the Supreme Court is linked to political considerations and as a result many judges do not have a legal education”. Moreover, the Supreme Court informed Amnesty International that it has appointed 137 judges to the Supreme Court. This represents 128 more judges than the Supreme Court is competent to appoint under the applicable law."

Document(s): Open document

07.03.2003 - Source: Danish Immigration Service

District courts ("The Political, Security and Human Rights Situation in Afghanistan: Report on fact-finding mission to Kabul and Mazar-i-Sharif, Afghanistan and Islamabad, Pakistan; 22 September - 5 October 2002") [#11326],  [ID 722]

"According to the source, there are no local systems in the villages parallel to the nationwide judicial system. All villages are under the jurisdiction of a district court. Also, there are no longer any elder-councils. All conflicts are resolved by the district courts. The Deputy Minister of Justice added that it is a tradition, that the village councils decide on a range of matters. The Deputy Minister of Justice pointed out that he did not agree with this practice and it was his opinion that all legal conflicts should be placed before the courts.
The Deputy Minister of Justice advised that the processing time of the court system - the amount of time required for a case to proceed through the court system, from the district courts in the first instance and up to the Supreme Court in Kabul - depends on the actual case documentation and the type of case involved. For minor infringements, the processing time is 1-3 months. Serious offences must be processed within 6 months. The Deputy Minister of Justice added that there are still a large number of cases left over from the Taliban period, which means that there is a certain backlog at the Supreme Court."

Document(s): Open document

05.03.2003 - Source: Medica Mondiale

The Judicial System in Afghanistan has three tiers for most criminal and civil cases ("Trapped by Tradition - Women & Girls in Detention in Kabul Welayat") [#14380],  [ID 720]

"Das afghanische Rechtssystem kennt für die meisten zivil- und strafrechtlichen Fälle drei Ebenen: Die erste Ebene sind die District Courts (Amtsgerichte/Bezirksgerichte), wo die meisten einleitenden Untersuchungen durch die Polizeiermittler stattfinden. Die zweite Ebene sind die Provincial Courts (Landgerichte/Oberlandesgerichte; in Kabul sind diese im Welayat untergebracht), wo Berufungsverfahren durchgeführt werden (meist geht es um die Dauer der Haftstrafe) und wo Mord und einige andere Fälle von Anfang an verhandelt werden. Die dritte Ebene ist der Supreme Court (Oberste Gerichtshof), wo endgültig über die Berufungsverfahren entschieden wird. Auch Mordfälle werden dort verhandelt. Nach Aussagen des stellvertretenden Chefanklägers (Deputy Chief Prosecutor) gibt es ungefähr 30 Gerichte in Kabul einschließlich aller Distrikte."

Document(s): Open document

05.03.2003 - Source: Medica Mondiale

The Prosecution Service, ‘the Office of the Saranwali’, is formally separate from the Judiciary ("Trapped by Tradition - Women & Girls in Detention in Kabul Welayat") [#14380],  [ID 723]

"The Prosecution Service, ‘the Office of the Saranwali’, is formally separate from the Judiciary. It has some responsibility for prison conditions but mostly concerns itself with compiling files on cases, for example it will go with the police and do preliminary investigations such as photographing and fingerprinting. Both the Judiciary and the Saranwali are independent from the Ministry of Justice, but in the case of relations between the latter two the Ministry disputes this independence. Relations between the Ministry of Justice and the Supreme Court are similarly strained, again possibly to do with different understandings about spheres of influence."

Document(s): Open document

05.03.2003 - Source: Medica Mondiale

The typical procedure of the Prosecution Service ("Trapped by Tradition - Women & Girls in Detention in Kabul Welayat") [#14380],  [ID 724]

"Police investigate crimes and arrest suspects. Every police station has a detention facility, but the Saranwali deny that any women are kept there, instead they are taken immediately to the Kabul Welayat. “After either 24 or 72 hours (depending on which law applies) a decision about whether the suspect can be held further is made by a prosecutor from the local Saranwali office. The local prosecutor then prepares a file, with a recommendation about what crimes have been committed and what possible sentences might be and forwards this file to the district court. Certain cases including embezzlement, forgery, smuggling, murder, bigamy ‘skip’ the primary courts. Appeal is by right, from the primary courts except when the sentence is less than three months. A prosecutor can also initiate an appeal”."

Document(s): Open document

05.03.2003 - Source: Medica Mondiale

Medical Jurisprudence Department of the Ministry of Public Health: only about 5% of all cases which require forensic or medical investigation reach the Department ("Trapped by Tradition - Women & Girls in Detention in Kabul Welayat") [#14380],  [ID 725]

"Members of the Medical Jurisprudence Department of the Ministry of Public Health state that because of the way district level investigators and police conduct preliminary investigations ‘only about 5% of all cases which require forensic or medical investigation reach the Department…All others are solved by money or power.’ The Medical Jurisprudence Department is limited by this incompetence as well as by lack of facilities, supplies, resources, and training, and by threats from individuals involved in cases they investigate.
At present doctors are afraid to work in this Department, and some do so only because of ultimatums threatening transfer to some remote village. Requests by the Department for ISAF protection cannot be answered positively due to the protocol that requires the official request come from the Police, and as the Department points out ‘these are the ones we often want protection from.’ Given these circumstances, it’s not surprising that the evidence the Department presents does not hold up scientifically, and by their own admission, should have little legal weight. This lack of reliable forensic evidence is a particular concern in crimes where a woman is accused, as they tend to be ‘morality’ crimes, which necessitate some kind of medical examination to determine sexual activity. Currently most if not all women who are detained undergo some kind of vaginal exam, which is either carried out by the ‘only expert’ in the Department (a man), or ‘if the woman objects’ by a female medical professional from Malalai Maternity Hospital. Such forensic evidence is then dependent on interpretation by legal professionals. In some cases, such as one of alleged incest with off-spring, simple forensics could prove the case, but are not available."

Document(s): Open document

07.02.2003 - Source: International Commission of Jurists

Organization of the Courts of Afghanistan ("Afghanistan`s Legal System and its Compatibility with International Human Rights Standards (by Dr. Martin Lau)") [#16224],  [ID 726]

Please open document and see page 52 for the detailed structure of the courts in Afghanistan (Annex VII)

"34. The Law of the Jurisdiction and Organization of the Courts of Afghanistan of (Muslim Year) 1346 [1968] [the 1968 Law] contains detailed provisions on the hierarchy and organization of courts. It establishes the following courts: General Courts, which include the Supreme Court, the Court of Cassation, the High central Court of Appeal, Provincial Courts and Primary Courts; and Specialized Courts that include juvenile courts, labour courts, and other specialized courts established by the Supreme Court when needed.

35. Field-work revealed that in Kabul at least these courts are in operation though the number of cases heard by them and the exclusivity of their jurisdiction could not be ascertained. The Supreme Court itself consists of four departments: the department of the Administration of the Judiciary, the department of Judicial Inspection, the department of Research and Investigation, and the Public Prosecutor’s Office of the Judiciary. The 1968 Law contains detailed provisions on the judicial jurisdiction of the Supreme Court as well as its administrative powers and also establishes a Court of Cassation centred in the Supreme Court. The Court of Cassation functions as an administrative court of appeal and is divided into three ‘Collegiums’: the Collegium of Civil and Commercial cases, the Commercial Collegium and the Public Rights Collegium. The Court of Cassation can either annul the judgement of a lower court or confirm it. In case of the former a re-trial is ordered.

36. The next level of the court structure consists of the High Central Court of Appeal. It consists of three Collegiums similar to those of the Court of Cassation and its main function is to hear appeals against judgements pronounced by provincial courts. Each province has one Provincial Court which enjoys appellate jurisdiction over decisions made by primary courts and a limited original jurisdiction primarily involving cases relating to charges against public officials, press offences9 and smuggling.

37. The Chief Justice of Afghanistan determines the number of primary courts in each province. In 1980, there were about 220 primary courts and 28 provincial courts. Article 60 provides that the provincial courts are duty bound to provide the primary courts, located within their jurisdiction, with the necessary administrative services and assist in organizing theiradministrative affairs. All cases are in the first instance decided by a primary court but its decision is considered final only if in civil cases the value of the subject of the dispute does not exceed the amount of 500 Afghanis and in criminal cases, if the sentence does not exceed one month’s imprisonment. In the absence of an appeal by the contesting parties, a primary court’s decision becomes binding with the exception of cases involving minors, capital punishment, quisas,10 and life imprisonment."

Document(s): Open document

07.02.2003 - Source: International Commission of Jurists

The Office of the Public Prosecutor ("Afghanistan`s Legal System and its Compatibility with International Human Rights Standards (by Dr. Martin Lau)") [#16224],  [ID 727]

"46. The constitutional position of the public prosecution service established by the 1964 Constitution is defined as follows: ‘Investigation of crimes shall be conducted, in accordance with the provisions of law, by the Attorney General, who is part of the Executive organ of the State’ (Article 103). This constitutional arrangement was continued in the 1977 Constitution (Article 106). This meant that in practice the public prosecutor’s office was located in the Ministry of Justice. However, in the Interim Constitution of 1980 the Attorney General became an independent organ answerable to the Revolutionary Council. This pattern was also reflected in the 1987 Constitution (Article 119). Currently, the Attorney General’s office continues to be independent of the Ministry of Justice. The Law of Saranwali, i.e. the public prosecutor of 1345 [1966], which at least in theory regulates the Office of the Public Prosecutor, places his office under the supervision of the Ministry of Justice. According to Article 10 of this law ‘ the public prosecutor and the police shall perform the duties of detection, investigation and the prosecution of crimes through their own professional members.’ The law contemplates that the original investigation of a crime, once commenced by the police, has to be transferred to the public prosecutor within 24 hours. After completion of an investigation the public prosecutor either closes the file or refers the matter to a court. The Criminal Procedure Law of 1344 [1965] confers an exclusive power on the public prosecutor to file and prosecute a criminal action.

47. The Office of the Public Prosecutor appears to have been abolished by the Taliban but has been resurrected by the current Government of President Karzai. However, there seems to be a certain degree of competition between the public prosecutor’s office and the Ministry of Justice. In Kabul, the Office of the Public Prosecutor appeared to be functioning well. According to the CRAFT report ‘Filling the Vacuum: Prerequisites to Security in Afghanistan’ [March 2002], Kabul Province has 184 staff and had by early March 310 cases pending, 42 of which had been submitted to the relevant courts. According to the same report, in 1980 nearly 100 districts had no public prosecutor at all.

48. As in the case of the judiciary little is known about the functioning of the public prosecutor offices outside Kabul province. The Office of the Saranwali in Mazar-e-Sharif had only the most basic equipment, consisting of an old desk and a few chairs, no access to procedural or substantive criminal laws, and was staffed at the time of the visit by just one public prosecutor. He described his function as being very limited since military commanders in charge of various sectors of the city were also in full control of the investigation and prosecution of crimes, which were conducted by their own militias."

Document(s): Open document

01.2003 - Source: Overseas Development Institute

Historic overview of the Afghan justice system; in reality, Afghanistan's judiciary, achieved neither independence nor coherence ("Afghanistan’s political and constitutional development (Authors: Chris Johnson, William Maley, Alexander Thier and Ali Wardak)") [#11961],  [ID 728]

"Afghanistan's formal justice system has been influenced, to varying degrees, by Western (mainly French) legal thought, moderate and fundamentalist Islam, and Marxism. These influences largely reflected the values, ideologies and politics of the various Afghan governments. Thus, in the 1950s and 1960s the justice system was modernised and secularised, and state law rather than Shari'a became its primary source. After the military coup in 1978, the Marxist government attempted to introduce a Soviet-style judicial system, but these changes were rejected before they took root. The subsequent mujahideen regime of 1992­96 reinstated Shari'a as the basis of the state, and this was further entrenched by the Taliban's theocratic regime. Nonetheless, while most of these regimes have partly used their systems of justice as tools for achieving their political goals, they have nevertheless contributed to the richness of Afghan legal culture, and there is much within these different doctrines and approaches that can be fruitfully used in a new justice system. Under the 1964 constitution, the judiciary was to be a fully independent and co-equal branch of government, and the Supreme Court was to be the highest judicial authority in the country. The judiciary was charged with applying the laws and constitution of Afghanistan, and its writ of jurisdiction was broadly worded ­ explicitly including litigation brought against the state. The state was required to enforce all judgements. The constitution also included safeguards against judicial overreaching, such as public trial provisions and a requirement for the legal rationale for a verdict to be disclosed. The supremacy of the constitution and the laws of Afghanistan was made clear in Article 102; all justices were appointed by the king on the recommendation of the chief justice. These appointments could be reviewed every ten years by the king, otherwise the only possibility of removal was via impeachment.
In reality, Afghanistan's judiciary, in the short time it had, achieved neither independence nor coherence. The judiciary faced three primary obstacles in its development. First, there were far too few qualified judges and lawyers to ensure the fair and even application of the law. Second, local traditional practices for resolving disputes were entrenched, and undermined formal judicial power. In many cases, this meant that judges either supported the local practices, even when at odds with the law, or they became irrelevant. The third obstacle to independence was the pre-eminence of the king and the prime minister. The years of conflict have almost destroyed the formal justice system. There has been extensive damage to buildings, office furniture, official records, stationery and other essential equipment. The country's intellectual infrastructure has been devastated; many qualified lawyers and judges have left the country, seeking refuge in neighbouring states and in the West, and the number of law students has declined significantly. Judges were often appointed after consultation with regional commanders and, while all judges have allegedly been replaced this year, no strong standards are applied to these appointments. There have also been a number of changes to Afghan law in the past three decades, resulting in confusion about which laws have precedence."

Document(s): Open document