Throughout Afghanistan, Afghans are arbitrarily detained by police, prosecutors, judges, and detention center officials with alarming regularity. It is systemic and occurs in a variety of forms. 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 all Afghans to liberty and to due process of law and erodes their dignity. Another consequence of arbitrary detention is overcrowding in Afghanistan's detention centers. Also, arbitrary detention often places detainees' families under unnecessary socio-economic hardship because income and social standing is lost. Widespread arbitrary detention erodes public confidence in the judicial system and in the government as well.
To reverse this pattern, the Government of Afghanistan (GoA) committed to develop and implement corrective measures both in the Afghanistan Compact and the Afghanistan National Development Strategy (ANDS), as well as in the National Justice Progamme.
In order to assist the GoA in its efforts, the United Nations Assistance Mission in Afghanistan (UNAMA), with the cooperation of the Afghanistan Independent Human Rights Commission (AIHRC), monitored detainees in Ministry of Interior (MoI) [police] and Ministry of Justice (MoJ) detention facilities throughout Afghanistan from November 2006-July 2008. This report draws upon this field monitoring to discuss the patterns and causes of arbitrary detention and to make recommendations on measures to effectively combat it. This report does not cover conflict-related detentions, including those by the National Directorate for Security (NDS) or international military forces (IMF).
First, 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.
Second, there are indications that Afghans have been detained in order to deny them fundamental rights, particularly that of freedom of expression and many of the fundamental rights of women.
Third, Afghans are detained without enjoying essential procedural protections, rendering many 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 of prolonged duration. Other procedural protections that do exist, such as the right not to testify against oneself or to defense counsel, are not respected. The denial or lack of defense counsel is particularly problematic as access to, 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 trial without delay or to be released, are regularly breached, thus turning a significant portion of detentions arbitrary.
Generally, UNAMA found that these patterns
could mainly be attributed to five key factors-though others, such as
resources and professional qualifications, also play a role.
First, there are competing concepts of justice in Afghanistan-the formal justice system, the informal justice system, and cultural and religious traditions. These competing concepts lead to a presumption of guilt that permeates the criminal justice system which results in a different understanding of the function of detention and procedural protections and which predisposes authorities to detain. These competing concepts also feed a general hostility towards defense counsel and results in a different standard of justice being applied to women.
Second, Afghanistan's legal and regulatory frameworks are inadequate and do not include critical rights or guidance to authorities. Third, Afghanistan's formal justice system is still developing institutions, knowledge, capacity and tools, creating systematic weaknesses that allow arbitrary detentions. Fourth, impunity, corruption and weak oversight mechanisms enable arbitrary detention practices to continue uncorrected. Fifth, training and capacity-building programmes are insufficient to tackle the conceptual gaps between most Afghans' understanding of justice and the standards required in the formal justice system.
These findings and analysis along with consultations with a broad range of stakeholders form the basis of a series of recommendations on how to address arbitrary detention. These recommendations are outlined in the next section.
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