11.2004 - Source: Danish Immigration Service

Double jeopardy ("The political conditions, the security and human rights situation in Afghanistan; Report on fact-finding mission to Kabul, Afghanistan 20 March – 2 April 2004") [#27424],  [ID 800]

"The UNHCR had no general information about the occurrence of double jeopardy. They found that the risk of double jeopardy depends on whether a sentence, passed and served abroad, comes to the attention of the authorities in Afghanistan. It is difficult in practical terms to follow up on what happens in Afghanistan and therefore it is even more difficult to keep track on what sentences have been passed abroad.
The President of the Supreme Court said, in relation to whether it is a risk that a person who has been sentenced and punished in Denmark will also be judged and punished for the same offence in Afghanistan, that generally a person will serve his sentence where he committed the crime. However, the President of the Supreme Court pointed out that it depends on whether someone has committed a crime against society or against an individual. If one has committed a crime against society, one would not be prosecuted upon returning to Afghanistan. However, if someone has committed a crime against a person, for example committed a murder, there is a risk that the family of the offended could demand the perpetrator to be punished according to Afghan Law. In such cases there could be a risk of double jeopardy.
The Minister for Justice argued that if a sentence has been served abroad it is final. According to the Minister of Justice it does not make any difference whether one is sentenced and punished for murder and there are relatives who wish to present themselves as injured parties. There is no risk of double jeopardy if the offender has served his sentence abroad. The Justice Minister stated in this context that he disagreed with the President of the Supreme Court on this matter."

Document(s): Open document

07.03.2003 - Source: Danish Immigration Service

Criminal Law ("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 795]

"The Criminal Law is from 1976 and the same as the law in force under communist rule. The law does not have provisions for legal aid. The criminal law is not up to international human rights standards. For instance, the rules of criminal procedure do not allow for a defence attorney. It is possible to apply for legal aid, but only in Kabul, even when the person accused is in custody in Kandahar. There are no provisions in the law for the appointment of a defence attorney. If the person charged cannot afford to pay for a lawyer, the case will be processed without a defence for the accused. The president of the Supreme Court is a Mullah with no professional legal knowledge. He is appointed by Karzai."

Document(s): Open document

07.03.2003 - Source: Danish Immigration Service

Criminal law is Sharia law ("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 796]

"The Director of Secretariat of the human rights commission and the Commissioner said that the Sharia applies at all levels. The criminal law is Sharia law. It will therefore be a great challenge to incorporate human rights into the Sharia laws. All legislation in Afghanistan is Sharia law or civil law, but the Taliban abused the Sharia laws. As an example the sources mentioned that according to the Sharia laws there are 21 requirements which must be met before amputation can occur, and similarly there must be four witnesses to infidelity before it can be punished. According to the sources, in practice it would be impossible to comply with all requirements to apply the punishments prescribed by the Sharia laws. Neither before nor after, were the Sharia laws applied as they were under the Taliban regime."

Document(s): Open document

07.02.2003 - Source: International Commission of Jurists

Substantive criminal law in Afghanistan continues to be governed in large part by Islamic law ("Afghanistan`s Legal System and its Compatibility with International Human Rights Standards (by Dr. Martin Lau)") [#16224],  [ID 797]

"60. Substantive criminal law in Afghanistan continues to be governed in large part by Islamic law. The first comprehensive codification was enacted as the Penal Code of 1925. This was followed by the Criminal Law of September 1976. I have not been able to obtain a translation of this Code but a comprehensive description of it is contained in Gholam Vafai’s “Afghanistan. A Country Law Study”. It appears that the Criminal Law of 1976 introduces a quasi secular system for all tazir offences - i.e. offences which attract under Islamic criminal law only discretionary punishments administered by the state - but retains the system of Islamic hadd punishments, retaliation and payment of fines for ‘Islamic’ crimes, which are to be punished according to the principles of the Hanafi school of Islam. Depending on the nature of the evidence available against an accused, hadd unishments will be imposed on those who have been found guilty of theft, highway robbery, adultery, rape and fornication.

61. Some of the punishments awarded for hadd offences, such as, for instance, the stoning to death of an adulterer if certain evidential requirements are met, do conflict with both the 1964 Constitution, which prohibits the imposition of punishments ‘incompatible with human dignity’ (Article 31) and Afghanistan’s international legal obligations. However, it is not known whether the present administration intends to modify these aspects of Islamic criminal law. Apart from Islamic punishments, the remaining provisions of the Criminal Law of 1976 are modelled on European principles of criminal law and are thus unremarkable. It is in the area of Islamic punishments that the most flagrant conflicts with international human rights standards exist. This is also the area of law that is likely to be the most sensitive to reform.

62. The question of reform of these aspects of Afghanistan’s criminal law has to be considered as forming part of two inquiries both linked but nevertheless distinct. Firstly, the Criminal Law of 1976, such as it is, is not widely applied or enforced. In practice virtually all courts, including the Supreme Court of Afghanistan, rely on Islamic law directly. It is essentially a political question whether or not this situation should continue to exist and a practical question whether or not it would be possible, even if regarded as desirable, to replace the de facto law of the land. Secondly, any formal commitment to the enforcement of a codified criminal law, be it in the form of a new law or through the re-enactment or distribution of the existing law of 1976, would entail as of necessity the need to deal with Islamic punishments either removing them or de facto affirming them. Both scenarios are problematic courses of action. Any failure to distance itself from the radical interpretation and ruthless imposition of their particular brand of Islamic law by the Taliban will bring the Government into conflict with the international community and the emerging human rights community of Afghanistan. However, any radical project to remove Islamic punishments, and thus crimes, from the statute book is liable to be considered controversial by the vast majority of the population.

63. In the writer’s opinion, the Islamic punishments for hadd offences constitute clear and unambiguous violations of international human rights law, in particular the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The Government will have to take a stand if it wants to be in compliance with international human rights norms even if this attracts domestic opposition from some quarters. In fact, there is without any doubt little the Government can currently achieve since it has been unable to extend its writ to all of Afghanistan. As was observed by Amin: ‘owing to the political conditions, in most areas the State law of Afghanistan still remains unenforceable. What is in force is either the religious law in the form of traditional Islamic law or the customary and tribal practices’ [p. 80]. Any change to this situation will require far more than just the reprint and distribution of statutes. Put simply, the ‘modernization’ of Afghanistan’s legal system must be seen as an integral part of political, social and economic development in the country. Understood and viewed from this perspective it is both a condition and a reflection of development. In this context the role of the government extends beyond the drafting and implementing of laws compatible with international human rights' norms. The government has to play a critically important role in the areas of education and leadership. A human rights culture and the rule of law are unlikely to emerge in Afghanistan without the total commitment of all levels of government to such a vision for Afghanistan's future."

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 798]

"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

19.12.2001 - Source: Radio Free Europe/Radio Liberty

Koran remains the primary source of the country's laws; interpretation of those laws will be far more humanely than under Taliban ("Afghanistan: More Moderate System Of Islamic Law To Return") [#28993],  [ID 799]

"Zalmay Payenda is a supreme court judge who was fired from his post by the Taliban and now is back at work in his chambers. He is still awaiting official reappointment to his post, and he has yet to be paid a salary again. But already he and many other returning judges are looking forward to issuing their first court verdicts and bringing Afghanistan closer to the mainstream of Muslim legal systems. Payenda says Afghanistan will always have a legal system based upon the Koran, which, along with the sayings and traditions of the Prophet Mohammad, is the primary source of the country's laws. But he says that the returning judges will interpret those laws far more humanely than the Taliban would have tolerated. (…) The judge says that flexibility comes from the fact that while Islamic law prescribes amputation of the hand for theft, for example, the Prophet Mohammad also said the guilty should be helped to mend their ways. That means that judges can look for the best ways to rehabilitate a criminal and take that into consideration when passing sentence. Payenda says this does not mean that public executions will disappear entirely in Afghanistan. Many judges here believe in the need for such executions -- usually by hanging -- to set a public example of the penalties for the most severe crimes. But he says such executions will be far rarer than during the time of the Taliban, which used them to punish both criminals and political opponents and to terrify the public. Similarly, he says judges may continue to sentence thieves to amputations, but only as the maximum sentence and in the absence of extenuating circumstances that would usually reduce the penalty to imprisonment. The stoning to death of those suspected of committing adultery is likely to disappear altogether, as courts return to requiring that there be four male witnesses or eight female witnesses to the act of adultery. That requirement, set by Islamic law to prevent false accusations, is almost impossible to meet legally, though this was regularly ignored by Taliban courts. Hamid Karzai, the man chosen to lead Afghanistan's interim government, today said he would apply tough Islamic law to common criminals as part of his efforts to restore peace and security in the war-torn country. Karzai, speaking in Rome where he was meeting with former Afghan King Mohammad Zahir Shah, said he would urge greater compassion in Afghanistan but that the rule of law must be enforced."

Document(s): Open document