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Afghanistan

Arbitrary detention in Afghanistan: A call for action - Volume II

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Introduction

This practical guide on combating arbitrary detention is Volume II of the United Nations Assistance Mission in Afghanistan's (UNAMA) series Arbitrary Detention in Afghanistan: A Call to Action. This practical guide is designed to complement Volume I and is targeted primarily at practitioners, as well as policy-makers and legislators. Its aim is to provide practitioners and others with the practical tools needed to identify and address arbitrary detention when and where it occurs. In contrast to Volume I, which is designed for policy discussions, Volume II provides detailed guidance as to specific human rights standards, the function of key rights, and, based on field observations, explores possible, practical solutions to improve rights protection. The practical guide can be used at the district-level as a guide to detaining officials, a training aid, and as an aid to those formulating laws, policies, regulations and standard operating procedures.

Background to the Practical Guide

This practical guide has been developed because throughout Afghanistan, Afghans are arbitrarily detained by police, prosecutors, judges, and detention center officials with alarming regularity. Arbitrary detention is systemic and occurs in a variety of forms throughout the country.

Arbitrary detention violates the Constitution of Afghanistan, and the international human rights standards to which Afghanistan has committed. In particular, it violates the right of every Afghan to liberty and to due process of law and it erodes Afghans' dignity.

Arbitrary detention also creates overcrowding in Afghanistan's detention centers. Arbitrary detention , moreover, often places detainees' families under unnecessary socio-economic hardship because income and social standing is lost. Widespread arbitrary detention erodes confidence in the government as well.

The Government of Afghanistan (GoA) committed to develop and implement corrective measures to combat arbitrary detention both in the Afghanistan Compact and the Afghanistan National Development Strategy (ANDS), as well as in the National Justice Progamme.

In order to better understand arbitrary detention practices and help the Government of Afghanistan and its judiciary combat it, UNAMA's Human Rights Team, with the cooperation of the Afghanistan Independent Human Rights Commission (AIHRC) conducted monitoring and research of detention in MoI and MoJ facilities undertaken between November 2006 and July 2008. All safely accessible districts and provinces were covered.1The monitoring and research was initiated after consultation and agreement with the MoI, MoJ, Attorney General's Office (AGO), and the Supreme Court and was conducted in three phases. This monitoring did not examine detentions by the National Directorate of Security (NDS) or those linked with international military forces (IMF).

In the first phase, November 2006-March 2007, UNAMA and AIHRC jointly undertook a structured monitoring program during which 1,089 interviews of detainees and prisoners were conducted at district and provincial MoI and MoJ detention facilities.2 When possible, the information gathered at the detention center was cross-checked through interviews with prosecutors and examination of court files.3 The program was constructed with the advice and assistance of partners such as Office of the High Commissioner for Human Rights (OHCHR), the International Development and Law Organization (IDLO), the Justice Sector Support Project (JSSP), and other experts.

During the second phase, March-September 2007, information was collected and analysis was undertaken on 943 additional cases monitored by the regional and provincial offices of both UNAMA and AIHRC during routine monitoring of detention facilities and normal case intake and interviews with relevant authorities. Observations from UNAMA's Legal System Observation Program (LSOP), conducted in Western, Northeastern, Central, Eastern and Northern regions between March and June 2007, also have been integrated into this report. Furthermore, the progress of cases identified in the first monitoring phase were tracked and were included in the second phase.

The third phase, September 2007-July 2008, relied on cases observed by UNAMA's regional and provincial offices across Afghanistan during routine monitoring.

This monitoring and research forms the basis of the findings and analysis contained in this practical guide. The guide does not examine detentions by the National Directorate of Security (NDS) or those linked with international military forces (IMF).

As was discussed in Volume I and are discussed in more detail below, monitoring found that Afghans are often detained without a legal basis, including for so-called 'moral crimes', breaches of contractual obligations, for family disputes, or to pressure a relative or associate into confession. There also are indications that Afghans have been detained in order to deny them fundamental rights, particularly to freedom of expression and of women to many of their rights.

Strikingly, Afghans are detained without enjoying essential procedural protections, rendering most, if not all, detentions arbitrary. One of the most critical procedural protections-a prompt and periodic review of the legality of detention by a Court-does not exist under Afghan law, nor does a detainees' right to challenge the legality of detention. Consequently, arbitrary detentions that could be prevented are allowed to occur and are often prolonged. Other procedural protections that do exist, such as the right to not testify against oneself or to defense counsel, are not respected. The denial of access to defense counsel is particularly problematic as access and presence of defense counsel provides a vital oversight mechanism that prevents many arbitrary detentions and mitigates other abuses. Significantly, time limits for pre-trial detention, which help guarantee the right to a trial without delay or to be released, are regularly breached turning a significant portion of detentions arbitrary.

Generally, UNAMA found that these patterns could mainly be attributed to five key factors-though other factors such as resources and professional qualifications also play a role. These five key factors will be discussed in relation to specific issues below, but in order to aid effective use of the practical guide are outlined below.

There are competing concepts of justice in Afghanistan-those underlying the formal justice system and those embedded in the informal justice system and cultural and religious traditions. These competing concepts lead to a presumption of guilt throughout the criminal justice system and a different understanding about the function of detention and procedural protections which predispose authorities to detain. These competing concepts also play out in a general hostility towards defense counsel and women enjoying a different level of justice.

Afghanistan's legal and regulatory frameworks are inadequate and do not include critical rights or guidance to authorities.

Afghanistan's formal justice system is still developing institutions, knowledge, capacity and tools and creates systematic weaknesses that allow arbitrary detentions.

Impunity, corruption and weak oversight mechanisms enable arbitrary detention practices to continue uncorrected.

Training and capacity-building programmes are insufficient to tackle the conceptual gaps between most Afghans' understanding of justice and the concepts contained in the formal justice system. This practical guide moves from this general overview of findings and roots causes. It systematically catalogues patterns of arbitrary detention from a substantive and procedural perspective and explores the causes and possible solutions for each pattern dentified.