07.03.2003 - Source: Danish Immigration Service

Special courts for "political crimes" ("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 762]

""Political crimes" are dealt with by a special court, and there are only two instances. Cases concerning political crimes are public cases. Political crimes were previously processed by the socalled revolution courts, but such courts no longer exist. The sources said that Amniat (the intelligence service) must obtain a court order from the secondary court in the province (2nd instance) in order to be allowed to search a house. In this connection the sources added that in general it is too early to assess where Afghanistan will "end up" in terms of human rights and the security of life and property."

Document(s): Open document

07.03.2003 - Source: Danish Immigration Service

Adultery ("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 763]

"The Deputy Minister for Women's Affairs said that in cases where a woman is caught in adultery, the spouse decides her punishment. The Minister elaborated that women - especially in rural areas - were not allowed to go out alone, and that consequently the issue of adultery would often be hypothetical."

Document(s): Open document

07.02.2003 - Source: International Commission of Jurists

Procedural Laws ("Afghanistan`s Legal System and its Compatibility with International Human Rights Standards (by Dr. Martin Lau)") [#16224],  [ID 764]

"64. The gap between procedural reality and theory is as wide as the one observed in respect of Afghanistan’s substantive laws. Professor Nasrulah Stanekzai states in his seminar paper that not only are there inconsistencies in the law caused by successive amendments but that courts are very slow, do not conduct their hearings in public, litigants do not know the law or do not have access to trained lawyers and that there was excessive bureaucracy. In his opinion, the legal system did not encourage people to ask for their own rights.

65. In theory, criminal procedure laws are governed by at least two laws. Firstly, the Criminal Procedure Law of 1965, as amended in 1974. According to Vafai, it follows the pattern of the French Penal Code. As noted above, the 1965 law was substantially amended by the Law on the Discovery and Investigation of Crimes and Supervision of the Attorney on its Legal Enforcement of 1979. The latter underwent further amendments in 1981. The sweeping powers accorded to the Attorney General and the secret services under these laws are most
disturbing. The latter enjoys exclusive jurisdiction to investigate crimes against external security, crimes against internal security and certain political crimes, as well as kidnapping and the taking of hostages.

66. Generally, a person arrested by the police must be reported within 72 hours to the public prosecutor, who has a further 72 hours to decide whether to release the suspect or press charges. Further detention has to be authorized by a judge and should normally not exceed two months though the public prosecutor may extend the period of detention in special circumstances.

67. On the conclusion of the investigation, the examining authority must issue an indictment that must be presented to the competent trial court. There is no jury system but the law provides for an open trial. The accused has the right to be represented by counsel or by a member of his family. Perhaps somewhat more unusually, the victim of a crime has the right to petition the trial court for the recovery of damages suffered as a result of the crime.

68. Apart from minor sentences, where the verdict is final, a convict can file an appeal against conviction and sentence within ten days after the pronouncement of the sentence. Since the first level of appeal courts is the provincial court, a convict has to be transferred to the provincial capital for his appeal to be heard. The appeal hearing includes a rehearing of the evidence and the provincial court is also permitted to call new evidence and to conduct its own investigation. Cases appealed to the Supreme Court arising out of the original jurisdiction of the provincial court allow the Supreme Court to hear the evidence again. In all other appeals the Supreme Court reviews the legality of the conviction but does not in effect retry the case. The execution of a sentence cannot be carried out except by order of a competent court.

69. It is unclear which of the procedural laws currently, at least de jure, apply in Afghanistan. The CRAFT report, compiled in March 2002, states that the public prosecutor can detain a suspect for up to seven days, after which the case must go to Court (p. 24). Neither the 1974 nor the 1981 law provides for a seven-day detention period and thus there is either in existence another procedural law passed after 1981, or the information given by the Public Prosecutor was inaccurate. In any event, the inability to even determine with any degree of certainty how long a suspect can be held before being produced in court is in itself disconcerting.

70. It must be concluded that the laws establishing the framework of criminal procedure are marked by uncertainty. The laws that could be reviewed in the course of this mission at times give excessive powers of detention to the prosecuting authority."

Document(s): Open document

28.01.2003 - Source: International Crisis Group

Attorney General ("Afghanistan: Judicial Reform and Transitional Justice") [#10512],  [ID 765]

"According to the 1964 Constitution, the Loya Saranwal (Attorney General or Public Prosecutor) is under the executive branch.
The Law of Saranwali (Attorney General's office) states that the Loya Saranwal "is the person of the Minister of Justice", a position maintained by the present minister, Abdul Rahim Karimi, during a meeting with ICG.
In 1981, however, the Attorney General was established as a separate office, and this has been upheld by the Interim Authority and the Transitional Administration. The Attorney General's office is presently dominated by the legal department of the Shura-yi Nazar, which predominates in the security organs of the Transitional Administration and consequently has much at stake in retaining control over it."

Document(s): Open document
02430afgh.pdf

20.12.2002 - Source: Institute for War and Peace Reporting

Local commanders in some provinces are pressuring judges to imprison people on trumped-up charges ("Prison Probe Exposes Abuses") [#10181],  [ID 766]

Document(s): Open document