1. Introduction

Re-establishing the rule of law, including ending impunity, is an essential pre-requisite for peace and stability in Afghanistan. Recognising this, the international community has pledged to assist Afghanistan in rebuilding and reforming its shattered justice system. The challenge of reconstructing a judicial system in the wake of 23 years of armed conflict is a formidable one. The lack of effective governmental control outside of Kabul, the existence of ongoing conflict and a de facto rule by commanders and armed groups in certain areas of Afghanistan are factors that are undermining the rule of law. Currently, the Afghan courts lack legitimacy and there is a perception among the people that the judicial system is unable to properly serve the interests of justice. The lack of public confidence in the court system is compounded by a history of reliance on informal judicial mechanisms in Afghanistan.

Despite the political and security problems undermining the rule of law, courts are operating in some urban centres in Afghanistan, albeit with limited capacity. However, in rural areas the judicial system is barely functioning. Where courts have been established, they are fragile and they lack the basic facilities necessary to ensure the administration of justice. The international community’s promised program of judicial assistance lacks strategic direction and it has been delayed in its commencement. As a result, the Afghan courts still lack basic facilities such as premises, furniture and copies of legal texts.

The judiciary has not received the support necessary to ensure that it is able to resist the pressures upon it. The failure of the international community to provide effective security and bring an end to the influence of armed groups has left the judiciary extremely vulnerable. Furthermore, the current lack of arrangements for the protection of courts, judicial officers, witnesses and victims undermines the capacity of the judiciary to assert its independence. As a result, certain individuals remain above the law because of their place in the community or because they are able to use threats, intimidation and other forms of pressure to influence judicial proceedings. In addition, economic influences have led to a widespread problem of corruption.

The rights of defendants are currently not being protected by the criminal justice system. Defendants, including children, are being denied the right to a fair trial. There is also a widespread problem of arbitrary detention. Many judges and prosecutors lack the qualifications and training necessary to properly apply domestic laws let alone relevant international law. Furthermore, legal reform is required to ensure that all domestic laws fully comply with international law, including the International Covenant on Civil and Political Rights (ICCPR) and the Rome Statute of the International Criminal Court (Rome Statute).

The high level of discrimination against women in Afghanistan is reflected in the criminal justice system. Women victims and defendants are being denied access to justice and are discriminated against by both the formal and informal justice systems.

The international military intervention in Afghanistan led by the United States of America (US) resulted in the fall of the Taleban government, which had been responsible for grave violations of human rights. The military intervention was accompanied by a political and financial commitment to reconstruction, legal reform and human rights. In a speech in October 2001, British Foreign Secretary Jack Straw stated that, "Afghanistan's development needs will be huge. The cost of rebuilding Bosnia was $5 billion. Afghanistan has four times Bosnia's population......But we have to be ready to bear the cost, because if we do not, the price we pay will be far greater." Leaders of other governments made similar promises. However, at the Tokyo International Conference on Reconstruction Assistance of Afghanistan, half a billion dollars less was pledged by the international community for Afghanistan than it was for Bosnia. Furthermore, in the current financial year there is a $15 million shortfall for rule of law related projects in Afghanistan.

As the international community focuses its attention on post-conflict reconstruction in Iraq, it is crucial that it does not rescind promises made to the Afghan people. Afghanistan requires comprehensive, long-term support and assistance to ensure that it develops a criminal justice system that is based upon respect for the rule of law and which operates in a manner that is consistent with universally accepted human rights standards.

2. Background

In November 2001, US-led military intervention in Afghanistan led to the fall of the Taleban government. On the 5 December 2001, talks brokered by the United Nations (UN) resulted in the Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions (the Bonn Agreement). The Bonn Agreement provided for a six-month Interim Administration. The Interim Administration was "intended as a first step toward the establishment of a broad-based, gender sensitive, multi-ethnic and fully representative government" and was required to respect international human rights law. The Interim Administration was entrusted with the task of preparing an Emergency Loya Jirga followed by a Constitutional Loya Jirga within 18 months.(1)

Under the terms of the Bonn Agreement, the Emergency Loya Jirga was to be convened to "elect a Head of the State for the Transitional Administration" and to "approve proposals for the structure and key personnel of the Transitional Administration". The Emergency Loya Jirga met in June 2002 and established the Afghan Transitional Administration (ATA), headed by President Karzai.

In December 2001 the UN Security Council authorised the deployment of an International Security Assistance Force (ISAF) in Kabul and its surrounding areas.(2) ISAF, currently led by NATO, is credited with increasing security in Kabul. However, in the rest of Afghanistan, factional fighting continues between rival armed groups. The ATA has been unable to establish control outside of Kabul, where powerful regional commanders wield power through the control of private armies. Some of these commanders have been incorporated into the ATA and they have placed their supporters in key positions within the police and local government. Commanders act with a high degree of autonomy and display little loyalty to President Karzai’s government. The lack of security and control by the ATA outside of Kabul is widely seen as a major factor hindering Afghanistan’s transitional process to a system that is based upon the rule of law. The ATA, the UN Secretary-General and international and national non-governmental organisations have repeatedly called for an expansion of ISAF’s mandate. However thus far the Security Council and ISAF contributing countries remain unwilling to deploy troops outside of Kabul.(3)

In March 2002 the Security Council established the United Nations Assistance Mission in Afghanistan (UNAMA).(4) UNAMA was mandated to assist the ATA with the implementation of the Bonn Agreement. UNAMA is headed by the Secretary-General’s Special Representative (SRSG), Lakhdar Brahimi, who oversees the work of two "pillars"; pillar one is responsible for political affairs, and pillar two is tasked with the co-ordination of humanitarian relief, recovery and reconstruction.

In his report to the Security Council setting out the mandate and structure of the mission, the Secretary-General stated that "a rights based and gender-sensitive approach would be integrated fully into the United Nation’s activities in Afghanistan".(5) A number of political affairs officers were placed in the pillar one structure with terms of reference that included the promotion of human rights. In addition, the posts of a senior advisor on human rights and a senior advisor on the rule of law were included in the office of the SRSG. However, due to staffing problems both positions are currently vacant.

UNAMA has been criticised for its failure to fully integrate human rights into its activities.(6) In particular, the mission has been unsupportive of Afghan calls to end impunity for past human rights violations. In addition, the human rights’ components of UNAMA, which are fragmented and lack strategic direction, have not ensured that human rights are integrated into UNAMA’s activities. Moreover, rule of law activities have been perceived to be the sole responsibility of the senior advisor on the rule of law and there has been no input into rule of law issues from the human rights’ components of UNAMA. As a result of this artificial fragmentation of human rights and rule of law, UNAMA has failed to engage in activities that support the protection of human rights within the criminal justice system. Furthermore, UNAMA has had mixed success in its efforts to support the implementation of the Bonn Agreement, in particular support to the judicial reform process.

The Bonn Agreement provided for the establishment of three Commissions. The Judicial Reform Commission, the Constitutional Commission, and the Human Rights Commission were each mandated to oversee the implementation of different parts of the Bonn Agreement. The Constitutional Commission was established in April 2003 with a mandate to draft a new Afghan Constitution in preparation for the Constitutional Loya Jirga. The Commission is believed to have completed a preliminary draft of the constitution. It has commenced a public consultation with the stated aim of gathering views from a broad section of the Afghan people but without sharing the draft text. The final draft of the Constitution is expected to be completed for presentation to the Constitutional Loya Jirga in October 2003.

The Constitutional Commission has been widely criticised for failing to carry out its mandate in a transparent and inclusive manner and for accommodating hard-line factional leaders.(7) The Commission has thus far not disseminated the preliminary draft of the Constitution and it has failed to conduct a meaningful public consultation with a broad cross-section of the population, including members of civil society and human rights advocates.

The Afghan Independent Human Rights Commission (AIHRC) was set up in June 2002. The AIHRC has a mandate to investigate and monitor human rights violations and to establish a programme of human rights education. The AIHRC has established regional offices and is receiving, and actively investigating, allegations of human rights abuses. The AIHRC has departments that are concerned with women’s rights, the rights of the child and transitional justice. The AIHRC investigation unit has started to monitor the prison system from an international human rights law perspective. However, the AIHRC currently lacks the capacity to engage in an all encompassing judicial monitoring program, including court observation. The AIHRC has competent staff who have already carried out a significant amount of work. Progress has been made despite long delays on the part of the Office of the High Commissioner for Human Rights (OHCHR) in delivering a promised program of technical assistance to the AIHRC.

The Judicial Reform Commission (JRC) was established in November 2002 and is composed of 12 prominent Afghan legal experts. The JRC is mandated to "rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions." However, as a creation of the Bonn Agreement, the JRC has no formal role in the administration of justice. The JRC’s role is limited to proposing reform strategies and seeking international donor assistance. Thus, the success of the JRC depends on the willingness of the formal judicial institutions - the Supreme Court, the Ministry of Justice and the Attorney General’s Office - to implement its suggested reforms. Thus far the JRC has struggled to devise and facilitate the implementation of a coherent judicial reform strategy. However, the JRC has facilitated the compilation of applicable laws and it has convened working groups that are currently redrafting legislation, including the criminal law, for presentation to the ATA. The JRC has also successfully initiated the establishment of the Legal Education Centre and members of the JRC have recently carried out a survey of the judicial system.

The applicable law was set out in the Bonn Agreement as "the Constitution of 1964…the existing laws and regulations, to the extent that they are not inconsistent with the agreement or with international legal obligations to which Afghanistan is a party, or with those applicable provisions of the Constitution of 1964, provided that the Interim Authority shall have the power to repeal or amend those regulations". Currently, however, there is confusion regarding the applicable law among legal professionals. This results, in part, from a recent history of non-reliance on written law and delays in the compilation and dissemination of applicable statutory law. Moreover, there is currently a lack of clarity among many legal professionals regarding the nature of, interpretation and interplay between, various sources of applicable Afghan law.(8)

3. Amnesty International in Afghanistan

This report is the third in a series of four reports on the criminal justice system in Afghanistan.(9) Amnesty International established a field presence in Afghanistan in June 2002 in order to facilitate reporting and campaigning on human rights. Preparatory research for this report was undertaken in March 2003 by a Legal Adviser from the International Secretariat. An expert on the administration of justice then visited Afghanistan from 15 April to 30 May 2003 and collected the information that forms the basis of this report.

Amnesty International delegates met with a wide range of Afghan legal professionals, including judges, prosecutors, independent lawyers and members of the JRC. Amnesty International also met with officials from the ATA, AIHRC, UNAMA, UNICEF, UNDP, UNHCR, donor governments and international and national non-governmental organisations (NGO).

Amnesty International is particularly grateful to the Supreme Court, Ministry of Interior and the Ministry of Justice and for facilitating access to courts and places of detention. Amnesty International is also grateful to the detainees and prisoners who shared their stories.

Amnesty International hopes that the analysis, observations and recommendations contained in this report will provide a constructive contribution to the protection of human rights in Afghanistan and ending impunity.

4. Judicial reform and reconstruction

4.1. The Afghan courts

The Afghan courts have been established within the framework of the structure envisaged by the 1964 Constitution and other applicable laws.(10) 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.(11) 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.(12)

Outside of Kabul, the Provincial Courts are in operation in some provincial capitals. For example, Provincial Courts have commenced work in the capitals of Kandahar, Kunduz, Herat, Nangarhar, Kabul, Balkh, Parwan, Badakhsan, Paktia, Farah, Logar, Badghis, Parwan, Logar and Wardak provinces. However, in many of these provinces, the Primary Courts have yet to be established. For example, in Mazar-e Sharif, Jalalabad and Herat only a very small number of Primary Courts are working. As a consequence, these Primary Courts and the Provincial Court are attempting to deal with the caseload of up to ten Primary Courts.

In some districts, such as Bamiyan and Khost, neither the Provincial nor the Primary Courts have been established. In addition, outside of the urban provincial capitals, courts have not been set up. Furthermore, logistical and resource constraints have hampered efforts to extend the activities of the urban based Provincial and Primary Courts to rural areas. As a result, the police and courts lack legitimacy and the ability to exercise their jurisdiction in rural areas. In these rural areas there is a heavy reliance on informal justice mechanisms.

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.

Amnesty International recognises that logistical and financial constraints may have hindered the establishment of some specialized courts. However, in the areas visited by the organisation, it was evident that apart from the Family and Juvenile Courts, all other specialized courts, including Public Security and Commercial Courts, had been established. Amnesty International is concerned that the failure to establish the Juvenile and Family Courts stems from the reluctance, on the part of the Supreme Court, senior Afghan judges and the international community, to recognise and prioritise the work of these courts. The failure to establish the family and juvenile courts appears to reflect a wider lack of concern for the protection of vulnerable groups in Afghan society and, in particular, women.

There is an evident lack of proper premises and facilities for the courts that are in operation. Judicial personnel in many areas are working in buildings that lack electricity, water and heating. Furthermore, many courts visited by Amnesty International did not have proper flooring, windows, appropriate furniture, including desks and filing cabinets in which to store case files and other court documents. All the courts visited by Amnesty International lacked basic stationery supplies such as files, pens, paper and record books which are essential for ensuring the proper administration of the courts.

In addition, the courts are currently operating in extremely overcrowded conditions. In many areas, up to four courts share a room and administrative staff are cramped into offices. For example, in Kabul, up to three Primary Courts share one badly equipped room and in Mazar-e Sharif, up to 40 staff in the Attorney General’s office share a single office.

The physical conditions of the courts visited by Amnesty International were extremely poor and tended to hinder the administration of justice. Amnesty International recognises that security and logistical constrains complicate the provision of assistance to the Afghan courts. However, the organization has observed that the international community has been slow in commencing its promised judicial assistance program. This means that the courts are currently operating without the basic minimum physical requirements. At the time of writing no emergency assistance to courts outside of Kabul had been provided.

4.2. Delays in formulating a judicial assistance strategy

"The development of a fair and effective justice system in Afghanistan is a vital requirement to meet the needs of the Afghan people and to protect their human rights, with special consideration for the most vulnerable sections of society, to ensure peaceful dispute resolution, to promote good governance.......... an effective justice system is essential not only for the successful development of Afghan society as a whole, but also to achieve lasting peace and security in Afghanistan." Final statement of the Rome Conference on Justice in Afghanistan, December 2002.

At the Rome Conference on Justice in Afghanistan attended by government and UN officials, the international community pledged its support for the reconstruction and reform of the Afghan judicial system. The Italian government has assumed the responsibility for coordinating international donor assistance in the justice sphere. In its role as "lead donor", the Italian government has chaired donor co-ordination meetings in Kabul, brought a number of legal experts to Afghanistan to assist the JRC and provided a considerable amount of financial assistance for judicial reform projects. The governments of Austria, Canada, India, Turkey, United Kingdom and US have also already provided, or pledged, funds for judicial reconstruction and reform in Afghanistan.

The Afghan cabinet approved $27 million for the justice sector in the development budget for the financial year ending March 2004. This $27 million represents the total amount of funds that the Afghan judicial institutions are authorised to seek from the donor community. However, at the time of writing, pledges had been secured for only $12 million. Thus, in the current financial year there is a $15 million shortfall for rule of law related projects in Afghanistan.

Delays in securing and distributing international assistance stems, in part, from a failure on the part of the international community to commit to providing the funds necessary to ensure that the Afghans can embark upon a comprehensive judicial reform programme. This, coupled with the delays on the part of some donor governments in fulfilling financial pledges they have already made has stalled the implementation of urgently needed assistance projects. Furthermore, a lack of co-ordination by the international donor community and delays on the part of the lead donor, the Italian government, in initiating regular donor co-ordination meetings in the period January-August 2003, has further delayed assistance.

There have also been delays in the distribution of some of the funds that have already been donated. At present international financial assistance to the justice sector is channelled through the JRC, rather than directly to Afghan judicial institutions. Development funds for judicial assistance projects are placed in the "justice fund", administered by UNDP. The "justice fund" provides a pool of money that is available for the implementation of projects identified by the JRC. At the time of writing, an estimated $7 million, which had been donated by the international community, remained unspent in the "justice fund". UNAMA officials and representatives of donor governments indicated that the delays had been caused by UNDP which has failed to ensure prompt implementation of projects identified by the JRC. However, UNDP blamed the JRC stating that it had failed to provide UNDP with clearly articulated projects for funding.

Since its establishment, the JRC, the body created by the Bonn Agreement to "rebuild the domestic justice system", has proposed and initiated a number of projects. For example, the JRC has facilitated the compilation of applicable laws and convened working groups that are currently redrafting legislation, for presentation to the ATA. The JRC has also played an important role in the establishment of the Legal Education Centre. However, the JRC has struggled to formulate other quick impact and long-term judicial reform projects for presentation to the international donor community and to devise an overall strategy for justice.

The failure of the JRC to formulate a coherent strategy for justice stems, in part, from initial delays in undertaking a comprehensive needs assessment of the justice sector. In the absence of a proper needs assessment, the JRC has not been able to prioritise needs. For example, a list of proposed projects recently circulated by the JRC includes 29 projects that are not explained in detail or prioritised in order of importance or given an expected date of implementation. As one senior ATA official explained, "the priorities of the JRC are wrong. Instead of formulating concrete plans for things that they can do they have come up with a list of everything that is needed to totally rebuild the justice system". In discussions with Amnesty International the JRC refused to acknowledge that it lacked strategic direction.

UNAMA, which was mandated under the Bonn Agreement to assist the JRC in carrying out its mandate, has failed to fully support the JRC and provide the technical assistance necessary to ensure that it has the capacity to devise a clear strategy for justice. The UNAMA rule of law component, currently staffed with one junior UN official, lacks the resources and capacity to provide appropriate technical assistance to the JRC. Although the government of Italy has brought a number of legal experts to Afghanistan, it has failed to ensure that technical experts are available to assist the JRC in formulating clear and precise proposals for projects for presentation to the donor community.

Strategic planning in the justice sector is also being hindered by a lack of co-ordination between the key Afghan institutions - the Ministry of Justice, the Supreme Court and the Attorney General’s Office. One ATA official described relations between the three judicial institutions as "fraught with competition and friction". The Supreme Court’s relationships with both the Ministry of Justice and the Attorney General’s Office are extremely poor. In addition, communications between the Ministry of Justice and the Attorney General’s Office have broken down as a result of a dispute regarding whether the Attorney General’s Office should fall under the competence of the Ministry of Justice or whether, as the Attorney General wishes, it should be independent.

Rivalry and a lack of communication between the three judicial institutions has greatly complicated the work of the JRC which, as a creation of the Bonn Agreement, has no power to actually implement any of the reforms that it proposes. In the absence of proper communication between the main judicial institutions, the JRC is in fact powerless to facilitate the implementation of any holistic judicial reform strategy that it proposes.

Noting the problems stemming from the lack of communication within the justice sector, one representative of the Ministry of Finance stated that "there can be no rule of law in Afghanistan until such time as the Afghan judicial institutions and the donor community work together to devise concrete projects which can be presented to the international community for funding".

The JRC has recently sought to rectify the initial failure to complete a needs assessment of the Afghan courts. In the period between March and May 2003, the JRC with the support of UNDP, UNAMA, the Italian and US governments undertook a survey in 11 urban centres of judicial institutions, including detention facilities, in terms of their physical infrastructure, staff, and operations. The survey focused on the physical needs of the courts and did not attempt to assess the caseload of the courts or identify systemic problems in the judicial system. The implementation of judicial assistance projects has been put on hold pending the completion of the survey.

Amnesty International welcomes the completion of the survey. However, the organisation has observed that the presentation of the findings to the international community planned for June 2003 has been delayed. In order for the survey to be an effective tool, the JRC, with the assistance of the Italian government, must immediately use the information collected in the survey to produce a clear strategy for justice, which includes precisely defined and prioritised quick impact and long-term projects for the Afghan courts, including those outside of Kabul. Once the JRC has a clearly prioritised list of quick impact and long-term projects, they must be immediately presented to the international donor.

4.3. Recommendations:

· Strategy for justice: Afghanistan’s judicial institutions and the JRC, with the assistance of the international community, must immediately utilise the results of the judicial survey to formulate clear and precisely defined proposals for both short and long-term judicial assistance projects. These projects must be clearly set out and form part of an overall strategy for justice, which includes clear priorities for the short and long-term. A strategy for justice must be immediately presented to the donor community for funding.
· Prioritise the establishment of Juvenile and Family Courts: The establishment of properly functioning Family and Juvenile courts is essential for ensuring that the rights of vulnerable groups are protected. The Supreme Court and the JRC, with the assistance of the international community must immediately establish the Family and Juvenile courts outside of Kabul.
· Donor co-ordination: Under the strategic leadership of the government of Italy, the donor community must increase its efforts to co-ordinate judicial assistance. The Italian government must ensure that regular information on the judicial reform process is disseminated to the donor community and that regular co-ordination meetings are held in Kabul.
· Long-term financial assistance for judicial reform and reconstruction: The international community pledged to support judicial reconstruction as a means of facilitating peace and security in Afghanistan. The international community must ensure that it provides long-term financial assistance to ensure the re-establishment of the rule of law in Afghanistan. Donor governments who have pledged to provide financial assistance must deliver these funds as a matter of urgency.
· Relations between Afghan judicial institutions: The breakdown in relationships between the Afghan judicial institutions is an extremely serious problem. Effective co-operation between the Supreme Court, Ministry of Justice and the Attorney General’s office is a pre-requisite for judicial reform. The ATA must immediately take steps to facilitate better working relationships between these three key judicial institutions.
· Strengthen UNAMA’s role: UNAMA is mandated under the Bonn Agreement to provide assistance and support to the judicial reform process. The rule of law component of UNAMA must be strengthened and staffing levels increased in order to ensure that it is able to effectively carry out its mandate. In addition, there must be no further delays in recruiting a senior advisor on the rule of law. UNAMA should also consider placing an expert in international human rights law under the senior advisor on the rule of law to ensure that human rights are fully integrated into rule of law activities. All UNAMA rule of law activities must be properly co-ordinated with the human rights components of the mission.

5. The Afghan judiciary

5.1. Judicial appointments

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.(13) 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.(14)

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.(15)

Amnesty International believes that the President also bears responsibility for this problem, as he is vested with the ultimate power to appoint judges. While the President’s office is aware of the problem, it has proved unwilling to trigger proceedings for the removal of unqualified personnel, instead preferring to apportion blame upon the Supreme Court. One senior source in the President’s office informed Amnesty International that; "we know that the judiciary is politicised and that the Chief Justice has appointed many judges who are not qualified". However, he did not indicate that the President’s office would be taking steps to remedy this situation. The JRC is also aware of the problems regarding the appointment of unqualified judges and has stated that the problem can be tackled by providing training to sitting judges.

Unsurprisingly, the Supreme Court is also unwilling to initiate the removal of unqualified judges. In an interview with Amnesty International, the Chief Justice acknowledged that there had been "some problems with unqualified judges". However, he stated that he had managed to resolve these problems by "talking to the unqualified judges".

One of the essential foundations of a fair and effective judicial system is a properly qualified professional judiciary. Amnesty International is concerned by the failure of the Supreme Court and the Afghan President to ensure that only properly qualified persons are selected for judicial appointment. Furthermore, the organisation believes that the plan to provide short-term training to unqualified sitting judges is a poor substitute for ensuring that the judiciary is comprised of properly qualified professional personnel.

5.2. Training the judiciary

The JRC and the international community have recognised that judicial training is a key component of judicial reform. Two training programmes have been initiated. The first, which commenced in May 2003, is a one-year course for young legal professionals. This course is being organised by the newly established Legal Education Centre (LEC) in Kabul and it aims to provide a backstop for the legal professional training which is currently unavailable, but which is a legal pre-requisite for judicial appointment. There are currently 150 young lawyers, all employees of either the Ministry of Justice, Supreme Court or Attorney General’s Office, engaged in the program. Only 20 of the participants are women.

Amnesty International welcomes the LEC program for young lawyers and commends the JRC for securing an agreement from the Supreme Court and the Ministry of Justice that all young lawyers who wish to be considered for judicial appointment must have successfully completed the LEC training. However, the organisation believes that this arrangement should be institutionalised and formalised in law in order to ensure that there is no ambiguity regarding the recognised qualifications for judicial appointment in Afghanistan.

The second training program is intended for sitting judges and prosecutors. The International Development Law Organisation (IDLO) has assumed responsibility for this training, which involves three-month, part-time training courses for serving judicial personnel. The IDLO had intended to start the first training cycle of 250 judges and prosecutors on 1 June 2003. However, a number of problems, including the absence of a properly planned and appropriate curriculum, stalled the initial commencement of this program, which started in August 2003. The IDLO programme provides training to judges and prosecutors together. Given the short duration of these part-time courses, this raises questions as to whether it will be possible to equip both professional groups with the very different legal skills that they require to carry out their duties.

There is an evident lack of communication between the IDLO and the LEC. The lack of co-ordination was obvious in meetings with IDLO and the JRC. For example, IDLO representatives stated that they would eventually assume responsibility for the young legal professional training, taking it away from the LEC. However, the JRC informed Amnesty International delegates that they had no knowledge of this plan and that they would not support such a move. The failure of IDLO to properly co-ordinated its work with the LEC also raises concerns over the consistency of the two curricula. In addition, the failure of both the LEC and IDLO to devise a programme of training for independent lawyers is of considerable concern.

Amnesty International is also extremely concerned that IDLO has decided not to include training on the human rights of women and gender sensitivity in the curriculum. IDLO informed Amnesty International delegates that training on women’s human rights will not be included as it is "too sensitive for Afghans". However, this view conflicts with those expressed by many senior Afghan judges and law professors who informed Amnesty International delegates that they would welcome training on human rights, including the rights of women.

It is regrettable that neither IDLO nor LEC plan to conduct any training programs outside of Kabul. Participants from outside of Kabul who are currently attending the LEC training have experienced financial and other problems with relocation to Kabul. In addition, interviews by Amnesty International delegates outside of Kabul indicate that family, financial and security considerations will prevent a large number of sitting judges and prosecutors from attending any planned training in the capital. Frustrated with the lack of training outside of Kabul, UNHCR organised a four-day training for judges in Nangarhar. Amnesty International believes that there is an urgent need to plan training programs outside of Kabul.

5.3 Under-representation of women in the judiciary

Gender inequality in Afghanistan permeates into the judiciary where women are greatly under-represented. While, at the time of writing, no exact statistical data pertaining to the number of women judges was available, a Supreme Court representative informed Amnesty International delegates that out of a total of 2,006 sitting judges, only approximately 27 are female.(16)

With the exception of the heads of the juvenile and family courts in Kabul, women are excluded from key positions within the judiciary. In addition, where women do serve as judges they do not perform the same functions as their male counterparts. Female judges tend to act in the capacity of judicial clerks and are rarely involved in the adjudication of cases. There were no women judges present at any of the 17 proceedings observed by Amnesty International.

In interviews with Amnesty International, a number of senior judges expressed a lack of concern for, and even resistance to, the greater inclusion of women in the judiciary. The lack of concern with the under-representation of women is evident in the fact that neither the Supreme Court, Ministry of Justice nor the Attorney General’s Office hold any statistical data on the number of women judges and prosecutors. Furthermore, in interviews with Amnesty International delegates, many senior judges expressed outright opposition to increasing the number of women judges. Other judges informed the organisation that if there were to be more women in the judiciary then it would only be appropriate for them to serve in the family and juvenile courts. When Amnesty International delegates asked the Chief Justice whether he had a strategy for increasing the number of women judges, he informed the organisation that "there are many unemployed men and our priority is to provide jobs for them. Once the problem of male unemployment has been resolved then we will turn our attention to women".

In March 2003, Afghanistan ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). CEDAW places an obligation on the government of Afghanistan to ensure the right of women to hold public office and perform all public functions at all levels of government.(17) In addition, both CEDAW and the ICCPR ratified by Afghanistan in 1983 set out that, where necessary, governments should undertake affirmative action to ensure that men and women enjoy equal rights.(18) Amnesty International’s research demonstrated that while approximately 25 percent of law students at the University of Balkh and Kabul are women, only approximately 1.3 % of judges are women. Amnesty International believes that affirmative action must be taken to ensure greater participation of women in the Afghan judiciary.

Amnesty International recommends that a fast-track program for training women judges be initiated without delay. The organisation believes that women law graduates should be targeted for recruitment into the LEC training program and that the requirement that participants be employees of the Supreme Court, Ministry of Justice or the Attorney General’s Office be waived. The LEC should aim to admit more women to the training each year and take positive steps to ensure that women are recruited. The international community must provide financial support to the LEC and women lawyers to ensure that they are able to engage in the training program. After successful completion of the LEC training, the Supreme Court should actively ensure that properly qualified women are nominated for judicial appointment.

5.4. Recommendations:

· Cease appointments of unqualified judges: The Supreme Court and the President must ensure that all persons appointed as judges possess the qualifications required by law. The President’s office must compile a public register of judicial qualifications. In addition, the qualifications of each candidate must be viewed by the President’s office prior to judicial appointment.
· Fast track program for women judges: In order to remedy gender imbalance within the judiciary a fast track program for women lawyers must be initiated. Female graduates from the law school and qualified female lawyers should be identified for recruitment to the LEC. There should be no requirement that these women lawyers are employees of the Ministry of Justice, Supreme Court or Attorney General’s office. The international community must assist in the establishment of this program, by providing financial assistance to both the LEC and women lawyers targeted by the program. Those candidates who successfully complete the LEC program should be targeted for recruitment into the judiciary.
· Institutionalise and support the development of the Legal Education Centre (LEC): The international community must fully support the development of the LEC. The LEC young lawyers program must be institutionalised and provided with a legal basis. The international community must ensure that the LEC is able to properly able to oversee and co-ordinate all legal training programs, including the IDLO legal training centre, in association with Afghanistan’s Universities. In addition, the LEC must develop a training program for independent lawyers as a matter of urgency.
· Training: The JRC, IDLO and donor governments must co-ordinate judicial training projects. In addition, judicial training projects outside of Kabul must be implemented as a matter of urgency. Judges and prosecutors should be provided with separate training courses that reflect their different professional needs. All judicial trainings must include practical legal skills. Furthermore, all training programs must include human rights, including the rights of women. Amnesty International offers this report, specifically Chapter 7 on violations of the right to a fair trial as a diagnostic tool highlighting relevant areas of international and domestic law that should be incorporated into human rights training.(19)

6. The independence of the judiciary

There is currently a lack of confidence in the courts and judicial personnel. Altering such perceptions will depend, in part, on demonstrating that the Afghan judiciary is free from political and economic influences and that it is not compromised. Article 97 of the 1964 Constitution and the Bonn Agreement guarantee the independence of the judiciary.(20) However, at present, the judiciary does not receive the support necessary to ensure that it is free from outside influences. As a consequence, the independence of the judiciary is being undermined by political interference from certain armed groups, persons holding public office and private individuals. In addition, economic influences have led to a widespread problem of corruption.

6.1. Threats to the independence of the judiciary

Amnesty International is concerned that the judiciary does not currently receive the required support to resist the pressures upon it. The failure of the international community to terminate the influence of armed groups and to improve security has left the judiciary extremely vulnerable. In addition, the failure to ensure proper security for the courts, judicial personnel, victims and witnesses has undermined further the capacity of the judicial system to act independently. As a consequence, certain individuals remain above the law because of their place in the community or because they are able to use threats, intimidation and other forms of pressure to influence judicial proceedings.

Pressure, including threats and intimidation, by armed groups
Amnesty International has documented a number of cases where there is evidence of interference in the work of the judiciary by armed groups. In all of the main prisons visited by Amnesty International delegates, the organisation met so-called "political prisoners".(21) That is, persons held extrajudicially upon the order of a member of an armed group or on suspicion of being associated with the former Taleban regime. In one prison, Amnesty International met with three "political prisoners" who had been detained for over a year and who had never been charged or gone before a court. When Amnesty International sought clarification of the status of these prisoners from prison authorities, the organisation was informed that the commanders were responsible for their detention and that they had prevented the court from dealing with their cases. When the Amnesty International delegates asked the competent court about these detainees, judges explained that it was "too dangerous" for them to deal with their cases due to "political influences".

Furthermore, there is also evidence of threats being exerted upon members of the judiciary with the aim of ensuring that certain persons remain above the law. A number of judges, prosecutors and Ministry of Justice officials interviewed by Amnesty International in Herat, Jalalabad and Mazar-e Sharif stated that they had received threats from armed groups. In one case documented by Amnesty International, prosecutors were forced to drop an investigation into a double murder after being threatened by armed men. Prosecutors working on this case informed Amnesty International delegates that there would be no prosecution "because the murder suspect belongs to a commander’s family". In another region, public security court judges stated that they had been prevented from dealing with cases involving serious crime, including drug related offences, after being threatened by armed men. In another region, judicial officials reported that armed gunmen had come to their offices on two occasions to ensure termination of judicial involvement in a number of property cases.(22)

Interference in the judicial process by persons holding public office
Amnesty International has also documented cases where there is evidence of interference in the work of the courts by persons holding public office in Afghanistan. One case involved a young woman who was initially held as a material witness in a murder case in January 2003. She was subsequently charged with unlawful sex before marriage before being released one month ago.(23) The victim in the murder case was the son of a local governmental official. After spending four months in detention, the young woman was released by an order of the Primary Court. However, political interference in the case prevented the young woman’s release. After the court ordered her release, it is reported that she was summoned to the head of the Provincial Court who informed the young woman that the head of the local government official was a friend of his and that he would not allow her release.

In the same region, it was reported that the District Governor frequently interferes in the work of the judiciary and that he takes the final decision in all cases involving "political prisoners", girls and women defendants.(24) In this region, it is reported that the prison authorities do not release prisoners until they have received the decision of the District Governor regardless of whether there is an order from the competent court ordering release.

Pressure on the judiciary from family members
There is a widespread pattern of family members putting pressure upon the courts in order to ensure that a relative, who has not acted in accordance with their wishes, is detained. The problem is particularly acute in cases involving girls and young women who resist forced marriages or who wish to marry men against the wishes of their family. Amnesty International interviewed a number of girls and young women in prison whose families had put pressure on the police and courts to ensure their arrest and continued detention after they had refused to marry in defiance of their families. The legal basis for these detentions was, in most cases, unclear.(25)

In one case, the father of an 18 year old woman initiated the arrest and prosecution of his daughter after she refused to marry a cousin. The young woman had informed her family that she wished to marry a different man. However, her parents insisted that she marry her cousin and when she refused her father put pressure on the police to facilitate her arrest. At her first court appearance, the judge informed the young woman that she was being detained for "wishing to marry without her parents’ consent". However, the young woman was subsequently subjected to two forcible virginity tests and informed that she was being charged with illegal sex before marriage.(26) Both the police and the court informed the woman that she would not be released from prison until such time as her family changed their minds and agreed to the marriage that she wanted.

While there is no evidence of corruption in this case, in other similar cases there are indications that family members provided financial incentives to judges in order to ensure that female relatives remain in prison. One case documented by Amnesty International involves a 14 year old girl who was sentenced to three years for leaving her husband.(27) The girl had been forcibly married by her family at the age of 13 and was reportedly subjected to physical and sexual abuse by her husband. A year after being married, the girl left her husband with the assistance of another man. It was reported that the family paid the judges to ensure her conviction.

6.2. Judicial corruption

There is a widespread problem of corruption amongst judges and prosecutors. Detainees in a number of regions of Afghanistan informed Amnesty International that judges and prosecutors had asked them, or their families, for money in return for their release. Prison staff also stated that judges and prosecutors routinely asked defendants for money and that prisoners who were able to pay were released from prison. The problem of corruption appears to affect every region of Afghanistan. However, it appeared to be particularly bad in Kabul. One detainee described the Kabul Welayat detention centre as "a business enterprise for the judges and prosecutors".(28)

Amnesty International has also documented cases where judges and prosecutors appear to have accepted bribes in return for not proceeding with certain cases. One case involved a 15-year-old girl who wanted to divorce her 60-year-old husband. The girl sought a divorce after being so badly abused by her husband that she required hospital treatment. After being discharged from hospital, the girl refused to return to her husband and went to live with her family who assisted her in approaching the court for a divorce. However, the girl’s husband refused to grant a divorce and it is reported that he paid the judges in order to ensure that they did not proceed with the case. The girl’s father, who took the case up on her behalf, stated that when he went to the court to follow up on the case he found that all the court documents, including statements from witnesses and medical professionals were missing. The following day armed men are reported to have visited the girl and informed her that she must return home. The girl then committed suicide by hanging herself.

In another case, there is evidence that a prosecutor took money from a wealthy businessman to secure the arrest of two brothers who were believed to be his business rivals. At the time of Amnesty International’s mission to Afghanistan, the two brothers had been held in a public security prison for over a year without being charged with a criminal offence. Commenting on this case, the Supreme Court informed Amnesty International that it had informed the public security court on a number of occasions that there was no basis for the brothers’ detention. However, the Supreme Court stated that they had failed to secure the release of the men in this "political case" because heavy bribes had been paid to a prosecutor and judge.

6.3. Resources for the judiciary

The problem of judicial corruption is well recognised and was discussed by senior judges, Supreme Court representatives, ATA officials and members of the JRC. Many attributed the problem to economic hardship and, in particular, the low level and irregular payment of salaries. Judges in Afghanistan currently receive approximately $50 a month. In the provincial regions visited by Amnesty International between April and May 2003, judges and prosecutors had not received their salaries for three months.

It has been argued by some member of the Afghan judiciary that the problem of corruption could be tackled by immediately increasing the salaries of all judges. Amnesty International recognises that providing sufficient financial resources to the judiciary is an important safeguard against judicial corruption.(29) However, the organisation does not believe that current problems facing the judiciary can be automatically eradicated by merely increasing the funds available for judicial salaries.

The problems related to irregular and low-level salaries in the judicial sector do not appear to stem from a lack of financial resources. The Ministry of Justice stated to Amnesty International that in the current financial year there are sufficient funds within the "regular budget" to ensure the level salaries paid to judges and judicial personnel were sufficient for them and their families to survive. However, the Ministry of Finance stated that the irregular payment of salaries outside of Kabul was due to the absence of a safe method of salary distribution to the provincial regions.

Furthermore, the Ministry of Finance and individuals involved in civil service reform attributed the financial problems within the judicial sector to a problem of over-employment within Afghanistan’s judicial institutions. Amnesty International notes that thus far there has been no independent assessment of the staffing levels required to service Afghanistan’s judicial institutions as a part of the judicial reform process. Moreover, the unregulated appointment procedures have resulted in a problem of employment of a number of unqualified personnel.

6.4. Insufficient judicial oversight

According to the applicable law, the Supreme Court is responsible for oversight of the judiciary, including the investigation of judicial misconduct.(30) Within the Supreme Court, the Judicial Department and the Monitoring Unit have assumed dual responsibility for the investigation of judicial misconduct. However, despite the existence of these departments, there are indications that the judicial oversight mechanism is currently failing to effectively detect, investigate and act upon allegations of judicial misconduct, including corruption.(31)

There is an evident lack of transparency within the Supreme Court regarding its procedure for the investigation of judicial misconduct. Different departments of the Supreme Court provided Amnesty International with conflicting information about the manner in which cases are detected and investigated and the procedure for the impeachment of a judge. However, what was clear from discussions with the Monitoring Unit is that the court has no effective capacity to detect and investigate cases of misconduct outside of Kabul due to logistical and financial constraints. It was also apparent that the Supreme Court is only overseeing the lower judiciary and that there is currently no effective judicial oversight of the Supreme Court itself.

In addition, the Supreme Court has no functioning public complaints mechanism. The court informed Amnesty International that members of the public who wished to make a complaint against a judicial officer could "bring a letter to the Supreme Court". Thus, the procedure for lodging a complaint against a judicial officer is wholly inaccessible to persons held in detention and any person living outside of Kabul city. Given the current lack of an effective and accessible judicial oversight mechanism, it is not surprising that despite the large number of allegations of judicial misconduct, there have been very few proven cases over the past year.(32)

The Supreme Court is currently responsible for both recommending candidates for judicial appointment and for investigating judicial misconduct. The current lack of effective oversight of judicial misconduct suggests that the independence and impartiality of the Supreme Court’s judicial oversight function is being compromised by its role in the judicial appointments process and that the dual functions assumed by the court may represent a conflict of interests. A similar conflict of interests appears to exist within the Attorney General’s Office, which is responsible for both the appointment and oversight of public prosecutors. Amnesty International recommends that the dual roles of appointment and oversight of personnel assigned to the Supreme Court and the Attorney General’s Office be assigned to independent bodies.

6.5. Recommendations:

· Increase security throughout Afghanistan: Security is a pre-condition for the rule of law and it is essential for creating an environment in which the judiciary can operate independently. The international community must take immediate steps to institute measures to ensure an effective level of security and human protection throughout Afghanistan, including by giving active consideration to the extension of ISAF’s mandate. In addition, the demobilisation, disarmament and reintegration process must be strengthened and expanded.
· Security for Afghan courts: The ATA and the international community must devise effective measures to ensure the security of the courts and judicial personnel in consultation with international courts and with states that have effective court security programs, particularly witness protection programs. Effective measures to protect judicial personnel, witnesses and victims must be developed as a part of the judicial reform strategy. In addition, trained and accountable police must be attached to the Afghan courts in order to ensure basic security.
· Review staffing requirements within Afghanistan’s judicial institutions with a view to streamlining: A comprehensive review of staffing levels within the Supreme Court, Ministry of Justice and Attorney General’s office must be initiated. This review must seek to identify the number of judges, prosecutors and judicial personnel required to staff Afghan courts with a view to streamlining. Within the context of the review, those persons found not to possess the required qualifications must be removed from office in procedures that guarantee the process and preserve the independence of the judiciary. Amnesty International recommends that this review be overseen by the Civil Service Commission within the context of the planned reform of the civil service. After reviewing and streamlining staffing within judicial institutions the ATA should raise judicial salaries.
· Establish a judicial services commission: In order to ensure effective oversight of judges and prosecutors, a judicial services commission should be established. The judicial services commission should be given a mandate to investigate misconduct, hold a central record of judicial qualifications and be responsible for the establishment of a public complaints’ mechanism. The judicial services commission should have the power to trigger a criminal investigation into any cases of alleged criminal activity by judges and prosecutors.


7. Violations of the right to a fair trial

One of the cornerstones of the rule of law is the notion of the right to a fair trial. The right to a fair trial is designed to ensure that all individuals are protected by law throughout the criminal process, from the moment of detention right up until the final disposition of their case. Afghanistan’s international legal obligations under articles 9, 10 and 14 of the ICCPR entail a right of all persons to a fair trial. The right to a fair trial is also set out in other international instruments, including the Rome Statute.(33)

The right to a fair trial is also guaranteed in Afghan law. Most notably, articles 25 and 26 of the Afghan Constitution, which set out the "basic rights and duties of the people", include a number of important provisions related to the right to a fair trial.(34)

However case monitoring and trial observation by Amnesty International indicate that the Afghan criminal justice system currently lacks the ability to ensure that persons accused of criminal offences are afforded their right to a fair trial.(35) The extremely serious and widespread violations of the right to a fair trial highlight the complex range of issues that must be tackled in developing a criminal justice system that fully protects the rights of both suspects and victims.

7.1. Violations of the right to a fair trial in the pre-trial stage

The right to be brought promptly before a judge
All persons deprived of their liberty have the right to be brought promptly before a judge or judicial officer.(36) While international human rights law does not prescribe an exact time-limit within which a detainee should be bought before a judge, jurisprudence suggests that "delays should not exceed a few days".(37) The right to be bought promptly before a judge is an essential safeguard that protects against arbitrary detention and torture and ill-treatment.

However Amnesty International has observed that this fundamental right is being systematically denied to persons deprived of their liberty in Afghanistan. In the course of substantial case monitoring and interviews with hundreds of detainees, the organisation did not identify a single detainee who had been brought before a judge or judicial officer within one month of the date of their initial detention. The organisation found that it was in fact normal for detainees to be held for up to three months before being bought before a judge. Moreover, the organisation documented over 20 cases where detainees, including children, were held for up to eight months before being brought before a judge.

The right to challenge the lawfulness of detention
The right to challenge the legality and obtain release if detention is unlawful is a fundamental safeguard. However, Amnesty International notes with concern that there is currently no mechanism in place in Afghanistan to ensure that detainees are able to challenge the legality of their detention. The lack of an effective mechanism by which to challenge the legality of detention represents a basic but critical omission to the applicable law.(38)

Domestic law does, however, set out procedures for ensuring regular judicial reviews of detention.(39) However, Amnesty International found that these procedures were disregarded and that detention reviews that were conducted were done in closed hearings, conducted in the absence of the detainee. Moreover, case monitoring demonstrated that the outcome of detention reviews was often not recorded in the court file and that there was a failure on the part of the court to inform the prison authorities or the detainee of the outcome.

Violations of the right to defence and notification of rights
Afghanistan’s international and domestic legal obligations include a right of all persons suspected of criminal offences to defend themselves in person, or with the assistance of legal counsel and the right to be notified of this right.(40) However, the international and domestic guarantees related to the right to defence are not implemented. Currently detainees have no access to legal counsel or the facilities necessary to prepare their defence during pre-trial proceedings (including during interrogations in police custody, interviews with the prosecutor and during pre-trial hearings).

It is highly exceptional for a detainee to be notified of their right to defence counsel by the police or the public prosecutor. In extensive interviews with individuals deprived of their liberty, Amnesty International was not able to identify a single detainee who had been offered the assistance of legal counsel during the pre-trial stage.

Without the essential safeguard of defence at this crucial stage of the investigation, Amnesty International found that confessions were routinely elicited by the police by the use of torture. The organisation documented numerous cases where detainees held in police custody were forced to sign confessions after being beaten with electric cables or metal bars or being given electric shock treatment. Some detainees also described being hung by their arms, sometimes for several days while in police custody.(41)

Amnesty International also noted a number of other practices employed by the police and prosecutors that tend to undermine detainees’ right to defence. For example, the organisation noted the widespread failure on the part of prosecutors and the police to read back statements taken in custody to detainees before they are signed. Some detainees also reported being told to sign other documents by the police and prosecutors without being given an opportunity to read them before providing a signature.

Arbitrary arrest and detention
International human rights law and applicable Afghan law require states to take a series of protective measures to ensure that individuals are not deprived of their liberty unlawfully or arbitrarily.(42) The practice observed by Amnesty International of holding "political prisoners" extrajudicially, violates this provision.(43)

International law and standards not only require that an arrest or detention must not be arbitrary, but they must also be on grounds, and according to procedures, established by law. Thus, a detention can become arbitrary where there are elements of injustice, lack of supervision by judicial or other bodies and where they violate the procedures set out by domestic and international law.(44)

Amnesty International observed a widespread failure on the part of the police, prosecutors and judges to follow the Afghan Criminal Procedure Code when dealing with persons deprived of their liberty on suspicion of committing criminal offences. In particular, the organisation observed that the provisions relating to supervision of detainees in the initial stages of detention were largely ignored. Under the applicable law, the police are authorised to hold a detainee for up to a maximum of 72 hours, after which time the case must be referred to the public prosecutor who can authorize the detention for a further seven days. After seven days the person must be charged by a judge or released.(45)

However, Amnesty International found that the majority of detainees are kept for over a week by the police and that in some cases, the police held suspects for weeks and sometimes even months.(46) The organisation also found that prosecutors were failing to adhere to domestic detention procedures by not charging detainees and by failing to refer their cases to the courts within the one-week limit. For example, Amnesty International delegates interviewed a British man who had been held for five weeks by the police and a further seven weeks on the order of the public prosecutor. Whilst being detained in police custody, this man was held for approximately two weeks in an unofficial detention facility located in the basement of the Ministry of Interior in Kabul.

The organisation is concerned that prolonged periods of pre-trial detention, in the absence of safeguards such as judicial supervision and access to defence counsel, leave adult and child detainees susceptible to other human rights violations such as torture, or cruel and inhuman treatment. In addition, the current absence of safeguards for detainees held for extended periods in pre-trial detention raises serious questions regarding the legality of their detention.

The right to trial within a reasonable time
Detainees also have the right to trial within a reasonable time.(47) This right has been interpreted to mean that the authorities must act with particular expedience and urgency when an accused is subject to a deprivation of liberty before he has been proven guilty of a criminal offence.(48)

With regard to juvenile suspects, international human rights law sets out that "arrest, detention or imprisonment of a child should be used as a measure of last resort and for the shortest possible time".(49) However, despite these guarantees, Amnesty International observed that prolonged pre-trial detention was the norm.

In all of the major prisons visited by Amnesty International, the organisation met detainees who had been subjected to extended periods of pre-trial detention, above and beyond the nine-month maximum time limit prescribed by Afghan law.(50) For example, in Kabul Welayat detention centre, Amnesty International delegates interviewed one detainee who had been held on suspicion of theft and assault for 11 months pending trail. Furthermore, in Jalalabad the organisation interviewed two detainees who had both been held for over a year awaiting trial. Similar cases were recorded in all detention centres visited by Amnesty International.

Amnesty International also interviewed children who had been held for extended periods in pre-trial detention.(51) In Mazar-e Sharif, out of a total of 13 boys who spoke to Amnesty International, four had been awaiting trial for over seven months. Moreover, none of the children interviewed had received detention orders or had any information regarding the status of their case, including the scheduled date of their trial.(52)

The right to the presumption of release pending trial
In accordance with the right to liberty and the presumption of innocence, people awaiting trial on criminal charges should not, as a general rule, be held in custody.

However, there are certain circumstances in which the authorities may impose conditions on a person's liberty or detain an individual pending trial – including when it is deemed necessary to prevent the suspect from fleeing, interfering with witnesses or when the suspect poses a clear and serious risk to others.(53) However, in Afghanistan, determinations regarding detention of a suspect pending trial rarely appeared to involve an examination of these circumstances. Rather, interviews with judicial personnel and detainees indicated that determinations regarding detention, when they did occur, revolved around the question of whether the prosecutor had collected any evidence. Where the prosecutor had failed to collected any evidence, detainees were kept in detention pending the discovery of such evidence.

7.2. Violations of the right to a fair trial during the trial and appeal stages

The right to call and examine witnesses
A fundamental element of a fair trial is the right of the accused to call and examine witnesses at trial. This right, which is guaranteed under applicable international and national law, ensures that there is an opportunity for the accused to examine and challenge the evidence against him or her.(54) However, during the course of trial observation Amnesty International discovered that it was exceptional for witnesses to be presented in criminal trials. No witnesses were present, or called to court, in any of the 10 trials observed by Amnesty International delegates. In three of these trials, defendants asked for witnesses to be called. However, in all three cases, all the defendants’ requests were either ignored or denied by the judge. While it is not known whether these witnesses could have provided exculpatory evidence, the courts refusal to call or examine any defence witnesses represents a serious violation of the right to a fair trial.

For example, after one trial in which the accused was found guilty of theft, Amnesty International delegates asked the judge why he had denied the suspect the right to call witnesses. The judge replied by stating that the proceedings would take "too much time if witnesses were called", and that, in any case, if the court did summon witnesses, the police were "not professional" and would fail to assist the court in summoning witnesses.

In five of the trials observed by Amnesty International, the judges or the prosecutor indicated that witnesses’ testimony, including statements from the victim, were included in the criminal investigation file. However, in none of the other trials observed were witness statements, referred to during trial, read out in court nor was their any indication that the witnesses had been properly examined during the investigation stage. Amnesty International is seriously concerned that failure to read out the full statements in court denied the defendants the opportunity to hear and examine the evidence against them. In a number of other trials, the total absence of any references to witness statements indicated a failure, on the part of the prosecution, to identify and collect relevant evidence and statements pertaining to the alleged crime.

The presumption of innocence
A fundamental principle of the right to a fair trial is the right of every person to be presumed innocent until proven guilty beyond reasonable doubt and according to law after a fair and public trial.(55) This right requires judges and prosecutors to refrain from pre-judging any case. The requirement of the presumption of innocence means that at trial the burden of proof is on the prosecution to demonstrate that the accused is guilty. If there is a reasonable doubt then the accused must not be found guilty.(56)

However, in the trials observed by Amnesty International in Herat, Mazar-e Sharif and Kabul the presumption of innocence tended to be undermined by attributes of guilt being borne by the accused. For example, in a number of courts, defendants remained shackled during trial. In addition, the language and actions of some judges and prosecutors indicated a presumption of guilt. For example, in three trials observed, the presiding judge turned to defendants who had pleaded not guilty and asked them why they had committed the crime.

Moreover, in the majority of trials, the court found the accused to be guilty despite the fact that there appeared to be a reasonable doubt that the accused had committed the alleged offence. Amnesty International believed that reasonable doubt existed due to the fact that in these cases the prosecution failed to present witnesses or other evidence against the accused during both the investigation and trial stages.

For example, one trial involved a juvenile defendant who was sentenced to one year of imprisonment for attempted murder by the primary court. The boy had been accused of going to the home of the alleged victim with a group of 12 men, including a "commander" and demanding money. It was alleged that when the victim refused to give the group of men money, the boy shot the victim in the leg with an AK47. The juvenile defendant denied the charges and told the judges that he had initially confessed to being at the scene of the crime after being beaten by the police. After the defendant pleaded not guilty, the judge accused the defendant of lying. Moreover, during the trial, the prosecutor presented no physical evidence or witnesses, such as a statement from the alleged victim of the crime. In court the boy asked for the alleged victim to be called, however, judges refused this request. The judges eventually found the defendant guilty on the basis that he had a criminal record and that he had confessed to the crime. However, at no stage during the proceedings was a confession read out in the court.(57)

In another case, at a pre-trial hearing involving a British man accused of murder, the prosecutor stated in open court that he would not disclose any evidence to the accused as it was "up to the defendant to prove his innocence to the court". Amnesty International delegates also observed a court pronouncing a man guilty of theft that had been allegedly committed by the defendant’s son. The judges stated that in the absence of the defendant’s son, they were trying his father for the alleged crime. During the trial, the prosecutor did not produce any evidence or witnesses. The accused, who had been in detention pending trial for seven months, was sentenced to five years’ imprisonment.

Exclusion of evidence elicited as a result of torture or other compulsion
Afghanistan’s national and international legal obligations set out that evidence, including confessions, elicited as a result of torture or other compulsion must be excluded by the court.(58) However, Amnesty International delegates were present at three trials during which the defendant claimed that their initial confession had been given after being tortured by the police. In all three trials, the courts failed to stop the trial proceedings and examine the defendants’ torture allegations in any other way. For example, in one trial in Kabul, a defendant charged with theft stated that he had confessed to the crime after being beaten by the police. However, the court ignored the allegation and proceeded to find the defendant guilty and sentenced him to seven months imprisonment. During the trial no witnesses or physical evidence were presented in court.

Amnesty International believes that wherever there is an allegation that a statement was elicited as a result of torture, cruel, inhuman or degrading treatment or duress, a separate hearing should be held before such evidence is admitted in the trial. At such a hearing, evidence should be taken on whether the statement in question was made voluntarily, then it must be excluded from evidence in all proceedings except those brought against those accused of coercing the statement. Furthermore, whenever there are reasonable grounds to believe that an act of torture has been committed a prompt and impartial investigation must be initiated, including a medical examination of the alleged victim.(59)

Violations of the right to defence and access to information
It is extremely rare for a defendant to be represented by a defence counsel at trial. Defence counsel was not present at any of the pre-trial and trial proceedings against Afghan detainees observed by Amnesty International.(60) Furthermore, the organisation was not able to identify a single Afghan detainee who had engaged, or received any form of advice, from a legal representative during any stage of the criminal proceedings.

As a result of the complete absence of access to defence counsel, the only manner in which a defendant can present a defence is if they are able to do it themselves. Under the circumstances, it is extremely important that the defendant have the access to information and documents pertaining to their case, including the evidence against them, in order for them to be able to prepare a defence.(61) Amnesty International delegates noted, however, that it is highly exceptional for defendants to be provided with any information, documents or other resources required for preparing a defence.(62)

In fact, none of the detainees interviewed by Amnesty International had been given access to any documents relating to their case prior to trial. Furthermore, the organisation discovered that the majority of accused persons