Criminal Procedure in Afghanistan

University of Washington School of Law

Asian Law Center

Legal Education Support Program-Afghanistan

By: Ghazi Hashimi

December 6, 2013

ABOUT THE AUTHOR

Assistant Professor Ghazi Hashimi, who currently teaches law at Kabul University, was born in Nangarhar Province, Afghanistan in 1980. Since 2008, he has taught criminalistics, general criminal law, international criminal law, trial advocacy in criminal cases, and criminology.In 2013, he got his Master’s in Law (LLM) from University of Washington School of Law. Since 2006 he has collaborated with the National Center for Policy Research on several projects. Additionally, he has translated theMax Planck Manual on Fair Trial Standards from Dari into Pashto and General Criminal Law, written by Dr. Hafizullah Danish, from Pashto into Dari. Currently, in addition to teaching at the law school, he has written this workbook and collaborates as researcher on a project titled “Unemployment Effects on Security” withNational Center for Policy Research (NCPR). He believes that legal education is an effective tool for fostering development and strengthening rule of law in Afghanistan.

Table of Contents

ABOUT THE AUTHOR

CHAPTER ONE: INTRODUCTION TO CRIMINAL PROCEEDURE IN AFGHANISTAN

PRE-READING QUESTIONS

VOCABULARY

VOCABULARY EXERCISE

INTRODUCTION TO CRIMINAL PROCEDURE

DISCUSSION QUESTIONS

CASE STUDY

WRITING ASSIGNMENT

CHAPTER TWO: AFGHANISTAN CRIMINAL COURTS AND THEIR JURISDICTION

PRE-READING QUESTIONS

VOCABULARY

VOCABULARY EXERCISE

AFGHAN CRIMINAL COURTS AND THEIR JURISDICTION

DISCUSSION QUESTIONS

CASE STUDY

WRITING ASSIGNMENT

CHAPTER THREE: LAW ENFORCEMENT AGENCIES

PRE-READING QUESTIONS

VOCABULARY

VOCABULARY EXERCISE

LAW ENFORCEMENT AGENCIES

DISCUSSION

CASE STUDY

WRITING ASSIGNMENT

CHAPTER FOUR: PRE-TRIAL PROCEDURE

PRE-READING QUESTIONS

CHAPTER FIVE: DEFENDANTS’ RIGHTS

PRE-READING QUESTIONS

CHAPTER SIX:CRIMINAL TRIAL PROCEDURE

PRE-READING QUESTIONS

VOCABULARY

VOCABULARY EXERCISE

CRIMINAL TRIAL PROCEDURE

DISCUSSION

CASE STUDY

WRITING ASSIGNMENT

CHAPTER SEVEN: POST-TRIAL PROCEDURE

PRE-READING QUESTIONS

CHAPTER ONE

INTRODUCTION TO CRIMINAL PROCEDURE IN AFGHANISTAN

PRE-READING QUESTIONS

Read the following questions and discuss them with your peers.

1. What is criminal procedure?

2. What is the difference between substantive criminal law and criminal procedure?

3. What happens if there is no criminal procedure in a country’s court system/ judicial system?

4. What is the difference between primary sources and secondary sources of law?

5. How are international conventions considered a source of criminal procedure?

INTRODUCTION TO CRIMINAL PROCEDURE

Criminal procedure deals with the rules and regulations governing the series of proceedings through which a government implements substantive criminal law. Each country has its own criminal codes that define crimeand punishment of that crime. For instance, in Afghanistan we have criminal codes such as: Penal Code of 1976, JuvenileCode of 2004, Uniform Code of Military Justice of 2008, Law against Terrorism Crimes, Counter Abduction and Human Trafficking Law of 2008, and so on. These laws are designed to protectthe propertyand lives of individuals from aggressions and criminal offences. In criminal cases a state has vast power to implement substantive criminal law on the accused.

Criminal procedure is enacted to ensure a balance between state power and individuals’legalrights,and to specify the responsibilities of the police, prosecutors, and judges during the proceedings of a criminal case. In other words, Criminal procedures are designed to enforce the rights of defendants, beginning with preliminary police contact and continuing through arrest, search, investigation, trial, sentencing, and appeals.Criminal procedurealso limits the exerciseof state power and prevents police and prosecutors from abusive actions against suspected and accused persons. Criminal procedure consists of pre-trial, trial, and post-trial stages through which the law enforcement bodies investigate a case, issue an indictment, and proceed with prosecution and punishment for violations of substantive law.

There areseveral sources of criminal procedures.TheAfghanistan Constitution (AC) includes some general principles and some specific requirements of the criminal justice system. More detailed and specific requirements are contained in statutes, including:Interim Criminal Procedure Code for Courts (ICCC) of 2004; the Criminal Procedure Law 69 (CPL) of 1965 with amendments of 1974; the Law on the Organization and Jurisdiction of Judiciary Branch of Islamic Republic of Afghanistan of 2013; the Police Law of 2005; the Law on Military Courts of 2005; the Law on Prisons and Detention Centers of 2005.Additionally, other sources of law may further clarify or alter procedural rules, such as regulations,judicial decisions,Hanafijurisprudence,and international conventions that Afghanistan is bound by.The views of legal scholars and their interpretations of laws are also considered as a secondary source of criminal procedure. Law enforcement agencies and courts are obliged to conduct criminal cases in compliance with criminal procedure.

DISCUSSION QUESTIONS

1. Discuss positive and negative points of criminal procedure codes in Afghanistan in a group of three or four.

2. What is your biggest concern regarding criminal procedure in Afghanistan?

3. What changes do you suggest in criminal procedure codes?

4. Do you have any experience with the implementation of the criminal code? If so, pleaseshare your experience with your groups.

CASE STUDY

Ali, a police officer, arrests Jawid right after Jawid killsJamsheed. He executesthe death penalty without referring the criminal case to the authorized court because he knows Jawid is the criminal and he knows that according to the penal code of Afghanistan he would receive the death penalty.

Is he allowed to implement aforementioned punishment himself? Why? Why not?

WRITING ASSIGNMENT

Write a 15 to 20-line essay about criminal procedure versus substantive criminal law.

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CHAPTER TWO

AFGHANISTAN CRIMINAL COURTS AND THEIR JURISDICTION

PRE-READING QUESTIONS

Read the following questions and discuss them with your peers.

1. What do you know about courts’ hierarchy in Afghanistan?

2. Why is a court unable to settle a case outside its jurisdiction?

3. Who else can resolve criminal cases in Afghanistan besidescriminal courts?

AFGHAN CRIMINAL COURTS AND THEIR JURISDICTION

According to the Constitution of Afghanistan, the judiciary is an independent entity of the Islamic Republic of Afghanistan. It consists of the Supreme Court, appellate courts, and primary or trial courts. The Supreme Court manages its activities through its various departments ordiwans. The Supreme Court has judicial advisors whose total number must not exceed 36. They are chosen from among the judges who have at least ten years ofpractical judicial work experience. In addition, the Supreme Court is responsible for the administration of a court system consisting of 34 provincial courts and 408 primary courts throughout Afghanistan.The Supreme Court of Afghanistan has five diwans,one of which is thecriminal diwan. The second court with the highest authority is the appellate court. All provinces have a Court of Appeals corresponding to thevarious diwans.The appellate courtsettles criminal cases atthe provincial level. The lowest courts in the hierarchical structure of the Afghan court system are Primary Courts. The Primary Courts are located at the district and city level. The number of departments varies.Generally, each district has a primary court that settles civil and criminal cases.

The judicial branch has exclusiveauthority to resolve disputes between individuals or between institutions and individuals. According to Article 2 of the Law on Organization and Jurisdiction of Courts the judiciary is an independent body of the state: “The Judiciary shall be the independent pillar of the state and composed of Supreme Court, Courts of Appeal, and Primary Courts. Traveling courts may be established when needed, upon recommendation by the Supreme Court and approval of the President.” In addition, Article 4 of this law gives the courts exclusive jurisdiction to settle all cases within the personal and subject matter jurisdiction: “no law under any circumstances may take a case out of the jurisdiction of the judiciary and submit it to a different authority.” However, there is still a huge gap between what is in the law and the reality in practice. In other words, some districts in rural areas do not have courts, detention centers, oractive attorneys.Hence, plaintiffsbring their cases to local Jirgas and Shuras. Additionally, widespread corruption in formal courts and the general lack of security in the country preventformal courts from fully exercising their jurisdiction, particularly in the rural areas.

DISCUSSION QUESTIONS

1. Discuss ingroups of three or four why the judiciary has exclusive authority to resolve the cases.

2. Discuss with your group why hierarchy is important in the judicial system.

3. What is the significance of formal and informal adjudication systems?

CASE STUDY

In theSurobi district of Kabul province, people believe that district court judges take bribes so they settle their cases using local jurgas and shoras. The Jurgas settle criminal cases according to local custom.

Do you think they are allowed to do so?

Explain your position

WRITING ASSIGNMENT

Write a 15 to 20line essay about the jurisdiction of courts in Afghanistan.

CHAPTER THREE

LAW ENFORCEMENT AGENCIES

PRE-READING QUESTIONS

Read the following questions and discuss them with your peers.

1. Name a few law enforcement agencies in Afghanistan.

2. Are there any restrictions on law enforcement agencies during arrest, investigation, and search processes?

LAW ENFORCEMENT AGENCIES

Law enforcement agencies, specifically the police and prosecution, are a part of the executive branch of government. Their primary responsibilitiesare preventing and investigating crime. TheConstitution and other criminal procedure laws and regulations limit the power of these agencies in their abilities to seize property anddetain or arrest suspicious individuals for questioning or interrogation. According to Article 134 of the Afghanistan Constitution, “Discovery of crimes is the duty of the police and investigation and prosecution are conducted by the attorney general’s office in accordance with the provisions of the law.” Accordingto Article 29 of the Interim Criminal Code for Courts, “The judicial police perform their duties under the direction and supervision of the attorney general. The judicial police have the role of detecting crimes, collecting evidence, and seeking suspects in the pursuit of justice.” Accordingly, police are obliged to discover crimes, collect evidence and witnesses, detain the suspects, and send the prepared reports to the primary prosecutor within 72 hours.After having been informed about the police activities,the primary prosecutor should approve, dismiss or revoke the reports; however, before taking any action he or she can ask the police to provide further explanations. The prosecutor has authorityand responsibilities in all criminal stages, pretrial, trial, and post-trial.

DISCUSSION

1. Discuss in a group of three or four how the police should behave with individuals suspected of a crime.

2. Why should the police perform their duties under the supervision of a primary prosecutor?

3. In accordance with Afghan criminal procedure codes, the prosecutor should investigate a criminal case for the purpose of discovering the truth, even if the truth is beneficial for the suspected or accused person. If they do so, why do we have defense attorneys?

CASE STUDY

The police arrest Jawad for being accused of murder and keep him in custody for two weeks until he confesses to committing the crime.

Is this behavior compatible with the Afghanistan Criminal Codes?

If it is not, what is the violation?

WRITING ASSIGNMENT

Write an essay of 15 to 20lines about gaps between what is in criminal procedure codes and what is done in practice.

CHAPTER FOUR

PRE-TRIAL PROCEDURE

PRE-READING QUESTIONS

Read the following questions and discuss them with your peers.

1. What do you know about the procedure of moving a case from complaint through trial?

2. What might happen if prosecutor brings a criminal case directly to trial?

3. Where does the pre-trial stage take place?

PRE-TRIAL PROCEDURE

Pre-trial is any actions taken by police and prosecutors to secure evidence of the crime, to arrest and prevent acriminal from escaping, as well as to collect information on the crime committed. The Pre-trial stage begins with the discovery of a crime and includescrime scene investigation, search, questioning, interrogation, and investigation, and ends with the filing of charges at a court with jurisdiction. Mostly, after the police areinformed ofa crime,they investigate the crime scene; search persons, houses, and cars; and arrest suspicious persons.

Arrest is avital tool that can help police and prosecutorscatch the guilty and free theinnocent, but they should follow the rules and regulations set by the Afghanistan constitution and criminal procedure codes. In accordance withArticle 6 of the AC, “Crime is a personal act. Investigation, arrest and detention of an accused as well as penalty execution shall not incriminate another person.” In addition Article 30 of the ICCC specifies circumstances according to which the police should arrest the suspected person: “(1a) The offender who is caught in [the act of a crime]flagrante delictoof misdemeanors, punished by medium term imprisonment, or felony; (1b) The Person who is allegedly the author of a felony and there is a risk of his disappearance. (2) In all other circumstances, the judicial police perform arrests only in execution of orders of the judicial authorities.”Arrested people are brought tothe local police department and then tocustody where they may beheld against their will for hours, sometimes even days.The police have to complete apreliminary investigation within 72 hours and submit the documents to the primary prosecutor. The prosecutor should approve ordismiss the police reportas soon as possible. Most of the time the prosecutor needs to collectmore evidence through interrogation, search, andinterview of witnesses and experts. Search is an important tool forcollecting evidence. Effective crime control couldn’thappenwithout searches; however, it intensively invades the privacy of individuals, their homes, private papers, and properties. In accordance with the AC and the Afghanistan Criminal Procedure Codes, law enforcement agencies are obliged to have a search warrant while searching the house, except if an offender is caughtflagrante delicto of acrime.

DISCUSSION

1. Discuss in a group of three or four, the actors involved in the pre-trial stage.

2. Have you ever observed an arrest, search or crime scene investigation? If yes, share your experiences with your group.

3. In accordance with our criminal procedure, prosecutors are required to file a criminal case if sufficient evidence exists. What are some benefits of this system? What are some disadvantages of such a system?

CASE STUDY

Assume that the police have a valid search warrant for defendant suspect’s apartment. The warrant specifies that the officers may search for a stolen 15.4-inch laptop. May the officers do the following?

1. Search the defendant’s closets in his bedroom?

2. Search the defendant’s body?

3. Seize a transparent bag of opium found lying on the defendant’s living room table?

4. Search jewelry boxes?

Explain your position

WRITING ASSIGNMENT

Write an essay of 15 to 20 lines about the importance of pre-trial stage.

CHAPTER FIVE

DEFENDANTS’ RIGHTS

PRE-READING QUESTIONS

Read the following questions and discuss them with your peers.

1. What does ‘presumption of innocence’ mean to you?

2. What is the policy behind requiring adefense attorney to zealously represent guilty persons?

3. What are some principles that support the defendants’ rights?

4. Despite being suspected or accused, why do defendants have constitutional rights?

DEFENDANT’S RIGHTS

Afghanistan’s Constitution and other criminal procedure codes guarantee defendants certainfundamental rights including thepresumption of innocence. The Afghanistan Constitution explainsin Article 25 that “Innocence is the original state. An accused is considered innocent until convicted by a final decision of an authorized court.” Another is the right to aspeedy trial found in Article 14 (2.a) of the Interim Criminal Procedure Code for Courts, the primary prosecutor and the court can split up joint cases when this contributes to more expeditious handling of them. Likewise, Articles 36 and 6 limit detention duration. A suspect may only be detained for 15 days. After 15 days, the Saranwal must either present the Court with an indictment, or the suspect must be released. This period may be extended upon request to the Court by the prosecutor, but only up to 15 days.Once the case is brought to trial at the Primary level, the Court can extend the detention for two additional months. During the trial at the appeal level the Court can extend the detention for another two months.If the case will be heard before the Supreme Court the detention can be extended for an additional five months.

The Afghan Constitution Article 27(1) provides freedom from arbitrary detention, stating, “No Person can be pursued, arrested, or detained but in accordance with provisions of law.” During an arrest, a suspect person is advised of his or her fundamental rights that are protected by criminal procedure codes such as: right to remain silent and the right to representation at all times by defense counsel. These rights are emphasizedin Article 5 (7) of the ICCC thatoblige the police, the prosecutor and the courts “to clearly inform the suspect and an accused before interrogation and at the time of arrest about his or her right to remain silent, the right to representation at all times by defense counsel, and the right to be present during searches, line-ups, expert examinations and trial.” Finally freedom from tortureis emphasized by the Afghanistan Constitution Article 29: “Persecution of human beings shall be forbidden. No one shall be allowed to [conduct]or order torture, even for discovering the truth from another individual who is under investigation, arrest, detention or has been convicted to be punished. Punishment contrary to human dignity shall be prohibited.” These rights are not only regulated by the Afghanistan Constitution but are also emphasized as principal rights for defendants in international conventions to whichAfghanistan is party to.

DISCUSSION

1. Do you think that a defense attorney should be required to zealouslyrepresent a client who has confessed guilt to the police or prosecutor? What if the result is the release of a violent criminal?

2. Do you think that police officers should arrest every suspect?

3. What factorsshould an officer consider when he or she arrestsa suspect?

CASE STUDY

The primary prosecutor informs the defendant of his rights, but he also encourages the defendant not to accept any counsel. He himself will help the defendant prove his innocence.

In accordance with the Afghan Criminal Procedure Codes, is the prosecutor allowed to do so?

Why or why not.

WRITING ASSIGNMENT

Write an essay of 15 to 20 lines about how the prosecutor and the police behave with defendants in detention centers.

CHAPTER SIX

CRIMINAL TRIAL PROCEDURE

PRE-READING QUESTIONS

1. Who is involved in the criminal trial stage?

2. Under what conditions does a case go to trial?

3. Whydo some cases not go to trial?

4. What are the rights of the accused during trial?

CRIMINAL TRIAL PROCEDURE

The Constitution of Afghanistan, International Convention on Civil and Political Rights, and Afghan Criminal Codes guaranteedefendants a speedy, fair, and impartial trial. According to Article 52 of the ICCC, the authorized judge initiates the trial byasking the defendant whether he or she is ready for the trial. After that the judge asks the prosecutor to present the case. The prosecutor has the burden of proof. In a criminal case this means that he mustprove guilt beyond a reasonable doubt.Keep in mindthat the duty of the prosecutor isto seek justice, not only to convict someone accused of a crime.The prosecutor’s responsibility is to protect the innocent as well as to convict the guilty; to lookout for the rights of the accused as well as to enforce the rights of the community. Sometimes, the judges ask the prosecutors further questions to expoundupon the case. Next, the judges give the defense attorneys the opportunity to challenge the prosecutor’s claims.

Although the prosecutor has the dutyto see that justice is done, it is usually the defense attorney whoraises issues such as illegal investigation, illegal searches and seizures, biased lineups, violation of constitutional rights, illegal detention, and so on. At all times during the trial, the defendant has the right of not being required to provide self-incriminatingtestimony. Thus, the defendant can choose to invoke his or her right to remain silent, or to speak on his or her own behalf against theclaims of the prosecutor. As is the case for the prosecutors, the judges ask the defense attorneys for further information on the case. As a principle, the accused, or his or her attorney, has the right ofrebuttalin the last moments of trial. After a brief consultation, the judges announce the verdict, which might be conviction or acquittal.Where a person is accused of multiple offenses, each charge stands on its own, and the accused may be guilty or innocent of any specific charge without being guilty or innocent of all charges.

Apart from minor sentences, where the verdict is final,either a convicted person,the defense attorney or the prosecutor can file an appeal against the sentence within twenty days after the affirmation of the sentence. As mentioned before, appellate courts are provincial level courts presentwithin each province. The appellate court reviews the facts and evidence and hears the case again. The parties to the criminal case can appeal theappellate court’s decision too.The Supreme Court, which is exists at the country level, reviews the legality of the sentence but does not rehear the criminal caseto make a judgment on the facts of the case.

DISCUSSION

1. Do you think that evidence that has been collected by thepolice or the prosecutor in an unlawful manner should be admissible at trial or not? Explain your position.

2. Who do you think should be responsible for a defendant’s detention?

CASE STUDY

(1) Jamal is accused of theft. During the trial he remains silent and does not speak even for a moment. The judges convict him and sentence him to sixyears of incarceration, reasoning that if he were not guilty he would have spoken in his own defense.

Do you believe the judges are allowed to base their judgment on this circumstance?

(2)Alem is suspected of committing fraud. At a questioning he does not say anything, so the Saranwal tells him he is obliged to testify or else he will be punished even more severely.

Was the behavior of the Saranwal in conformity with the law?

WRITING ASSIGNMENT

Write an essay of 15 to 20 lines about the positive and negative points of trial procedure in Afghanistan.

CHAPTER SEVEN

POST-TRIAL PROCEDURE

PRE-READING QUESTIONS

1. What does the post-trial stage mean to you?

2. Who has the duty to implement the final verdict of court?

3. Where does the final decision of a court take place?

4. What are some benefits of parole?

POST-TRIAL PROCEDURE

The last stage of criminal procedure, in which the conviction is executed, is known as post trial procedure.Article 8 (4) of theInterim Criminal Procedure Code requires the prosecutor to affect the final decision of the court.At the same time, this Article obliges the Court of Appeals and the Supreme Court to deliver the file containing the procedural documents and the objects confiscatedto the Saranwal of the Primary Court that adopted the initial decision. The final decision of the criminal court might be one of the following:acquittal, suspension of penalty, sending the convicted person into a corresponding mental hospital, incarceration,confiscationof objects or assets, anddeath penalty. In the case ofincarceration, the prosecutor should deductthe time the accused has already spent in detention. Likewise, the prosecutor should release the accused if the court’sverdict is in favor of the accused. A convicted person who has a mental problem must not go to prison; instead he or she should be introduced to theappropriate mental hospital. In accordance with Article 162 of the Afghanistan Penal Code, judges are allowed to select a particular type of sentence that is called suspended sentence.In this case a convicted person goes free; however, the police officer superviseshis or her deeds and behaviorsfor a specified period. The criteria of suspended verdict are imprisonment less than 2 years or fine less than24000 Afghani.

Nonetheless, during incarceration, if the criminal’sdeeds change from negative to positive,he or she might receive the benefits of parole. The main purpose behind parole (conditional release) is to rehabilitate the criminal. During parole the convicted person is released from prison, but the law enforcement agents supervise him or her so the criminal does not commit another crime.This benefit can be granted only if the person has served three quarters of the term and at least nine months of imprisonment.If a criminal commits a crime or otherwise violates the terms of parole, half of the time he or she has spent outside of prison is deducted from the remaining period of the sentence and the criminal is responsible for serving the rest of the last term in addition to the punishment for the new crime. The police report periodically to the prosecutor about the behavior of the person under parole.

DISCUSSION

1. Why does the government incarcerate criminals?

2. Despite being convicted, why doesa person have some rights in the post-trial stage?

3. Discuss some of the concerns surrounding the prison system in Afghanistan.

CASE STUDY

Nadir, an Afghanistan citizen, is accused of murder, theft, and bank robbery. Law enforcement officersprovide him the right to counsel and other necessary rights; however, all testimonyand evidence is against him. Hence, the judges convict him to execution and do not give him right to appeal. They believe the appeal court will make thesame decision because all evidence is against the offender.

1. Which rights of the defendant are violated?

2. Do you think defendants should have the right to appeal even thoughall the evidence is accurate and against him or her?

WRITING ASSIGNMENT

Write an essay of 15 to 20 lines about parole in Afghanistan.

Saturday, March 1, 2014

Criminal Procedure in Afghanistan.

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