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.