Procedure Code
Section 4.4 Evaluating the ICPC
4.4.1 The Application of the ICPC
A number of international organisations and NGO’s have reported on various areas of the justice system in Afghanistan since 2004, some of which provide useful information regarding the application of the Code.78 The Afghan ministries, however, have published very little statistical material providing any valuable insight into the manner in which criminal procedure laid down in the ICPC is being applied. Commenting on this issue, a report by UNODC in May 2008, which reviewed existing criminal justice legislation in connection with a programme of penitentiary reform, lamented that ‘essential information, such as crime and sentence statistics nationwide…[were] not available.’79
Some statistics have been published by the Afghan ministries and the Central Statistics Organisation (CSO). Information provided by CSO’s Statistical Yearbooks indicate that
76
See Appendix 5 for additional information regarding the Italian Criminal Procedure Code
77
Tondini, note 68. Tondini states that the articles in the ICPC ‘reproduce the bulk of the Italian criminal procedure code’s provisions,’ p.343
78
For example, UNDP, note 26, chapter 1; UNAMA, Overview, note 154, chapter 2; UNAMA, Arbitrary
Detention in Afghanistan. A Call for Action, Vol. 1 (January 2009) available at
www.unama.unmissions.org/…/ADVC%20-%20Vol/021%20-%English.pdf; UNODC, note 135, chapter 2
79
125 between 2004 and 2010 ‘total crimes’ on an annual basis varied between 6,786 and 10,870 (Figure 1). Between 2007 and 2010 the most common offences were consistently ‘injury,’ theft and murder80 (Table 3). However, the CSO unhelpfully fails to confirm
whether the statistics it provides refer to total number of arrests or convictions; nor does it provide any information regarding sentencing.
The AGO has published only one National Crime Statistics Report since 2001 which covers the period between March 2006 and March 2007 (Table 4).81 While some caution should be noted as to the accuracy of the figures provided, the report does provide some useful information about the working capacity of the courts, and the number and type of cases that they were processing when applying the ICPC.82 It reveals that the Appeal Prosecutors’ Office prosecuted 12,365 cases in the courts in the central departments, Kabul and in the provincial courts.83 The most common types of offences prosecuted were theft (19%), murder (12%), assault–related ‘beating-up’ (10%) and ‘injury’ offences (7.5%), demonstrating a degree of similarity with the statistics provided by the CSO.84
The Supreme Court has also made available some statistics on the judicial decisions reached in criminal cases in central and provincial courts for the period between August 2008 and April 2009 (Table 5). Excluding offences involving narcotics, the Courts considered 416 individual criminal cases. Of these only 2 resulted in the release of suspects. In the remaining cases, 31 defendants were sentenced to be executed and the rest received a total of 4,455 years imprisonment. These figures suggest that if an individual is arrested and charged with an offence there is a high probability that they will
80
It is possible that the customary principle of vengeance provides some explanation as to why there is a higher percentage of murder cases; Roder, T. Provincial Needs Assessment: Criminal Justice in Uruzgan
Province (2010), available at http://www.mpil.de/shared/data/pdf/pna_uruzgan_final_1.pdf, p.14
81
The Unified Report of Criminal Cases in Appeal Prosecutors’ Office in Centre and Provinces from 22 March 2006-17 March 2007, available at
http://www.ago.af/CONTENT/Crimstat/NationalCriStat/NationalCrimeStisticsEng.html
82
Dupree describes statistics in Afghanistan as ‘wild guesses based on inadequate data;’ Dupree, N.
Information Sharing for an Informed Civil Society in Afghanistan, Anthony Hyman Memorial Lecture (March
2005), available at www.soas.ac.uk/cccac/events/anthonyhyman/file25443.pdf, p.2. An interviewee referred to statistics provided by the Afghans as ‘something that we have some difficulties with because it is all paper- based...and people cannot count or do decimal points or things like that so you will see things that look like inconsistencies;’ interview, senior member of the UK Rule of Law team 29.02.2008
83
Although there are population differences, this represents just 2% of the total number of cases processed by the CPS in England and Wales during the same period (1,661,605); see the Crown Prosecution Annual Report and Resource Accounts 2007-2008 http://www.cps.gov.uk/publications/reports/2007/summary.html
84
Unified Report, note 81. It fails to confirm whether the statistics provided refer to criminal arrests or convictions. It is also silent with regard to sentencing
126 be convicted (99%).85 Moreover, if a defendant is not released or executed following criminal proceedings in which the ICPC is applied, on average they are likely to be sentenced to at least 10 years in prison.
The Supreme Court statistics also demonstrate significant regional variations in sentencing decisions. In Saamangan and Takhar provinces individuals convicted of murder were on average sentenced to 20 years imprisonment, whereas in Panjshir province defendants convicted for the same offence were sentenced to an average of only 2 years in prison. Moreover, the percentage of cases in which the Courts sentenced convicted murderers to be executed varied depending in which province the case was heard. In Takhar province 50% of suspects convicted of murder were sentenced to be executed. By comparison, in Jawzjan and Ghanzi provinces 33% of similar offenders received this type of sentence and in Saripul only 14% were to be subjected to a similar fate. More than a quarter of all cases in which defendants were sentenced to death took place in Herat province (8 out of 31). In the remaining 7 provinces which provided sentencing statistics, none of the defendants convicted of murder were sentenced to be executed. The potential for being executed if found guilty of an offence is, it would seem, a provincial lottery and likely to be a consequence of the inconsistent application by justice officials of the ICPC and the Penal Code in the Courts across the country.
The lengthy prison sentences and high conviction rates evident from the Supreme Court statistics correlates with statistics relating to the prison population in Afghanistan which indicate a significant increase in prison numbers during the period that the ICPC has been applied. In 2001 Afghanistan’s prisons held only 600 inmates.86 In March 2005, a year
after the ICPC had been enacted, there were estimated to be 5,500 incarcerated in the country’s prisons.87 By January 2006 prison numbers had increased to 6,085.88 Only nine
months later there were reported to be 10,604 prisoners,89 almost double the number the previous year and far exceeding the prison capacity at the time of 7,421 inmates.90 It is
85
This is consistent with a 96% conviction rate for proceedings under the CNL in 2011; telephone interview, senior member of Rule of Law Team, ADIDU, London 31.03.2011
86
UNAMA, Overview, note 78, p. 21
87
ibid
88
ibid
89
UNODC, note 78, p.viii
90
ibid, p.54. Figures provided by the Central Prison Department, 2006. See also UNAMA, Arbitrary Detention, note 78 for details of prison population in 2008. This report estimated the prison population in Afghanistan to
127 estimated that the total number of people being detained in prison now is 17,000 which continues to represent more than the country’s total prison capacity amongst its 24 provincial prisons and 200 detention centres.91 Although the government plans to increase prison capacity to 27,000 with assistance from UNODC and international partners,92 current prison facilities remain poor and overcrowding has been reported to be as much as 1000% in some detention centres.93
Since the ICPC has come into force, detention and conviction rates have consistently outstripped prison capacity. While this on the one hand reflects insufficient prison infrastructure it is also indicative of an increase in the number of police arrests leading to a greater number of cases being referred for investigation and prosecution adopting ICPC procedures at a time when the justice ministries are not sufficiently capable of processing them. The expansion of the ANP since 2004 has resulted in increased numbers of arrests. In 2006 42% of all cases referred to the Afghan courts involved criminal law matters.94 By 2007 ‘the number of arrests ha[d] increased,’ according to UNAMA, 95 and 6,156 people
were detained under provisional arrest.96 By 2009 annual arrests were estimated to number between 8,000 and 10,000.97 While more arrests are being made by the police, more criminal cases are being referred to the Courts. According to Amnesty International, the Courts dealt with 5,310 criminal cases between 2002 and 2003, before the ICPC was passed.98 AGO reports for 2006 to 2007, however, refer to the AGO prosecutor’s office handling 34,288 existing files.99 Moreover, the Supreme Court reported a five-fold increase in pending criminal cases in the two-year period between 2005 and 2007.100
be ‘approximately 12,500’ in December 2008, p.3; UNODC, note 78, estimated the total number to be in prison as 12,400 in December 2007, p.54; ICRC visited 13,727 detainees in 109 different detention centres across Afghanistan between 2007 and 2008, ICRC Annual Report 2008 available at
http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/annual-report-2008- afghanistan/$File/icrc_ar_08_afghanistan.pdf, p.187
91
Interview with Programme Development Director, Penal Reform International 26.04.2011
92
UNODC, note 78, p.55
93
ibid, p.54
94 Armytage, L. ‘Justice in Afghanistan: Rebuilding Judicial Competence after the Generation of War,’ (2007)
67(1), Zeitshcrift fur auslandisches offentliches Recht und Volkerrecht, 185-210; p.195
95
UNAMA, Overview, note 78, p.21
96
Tondini, note 64, p.70
97
Benard et al, note 145, chapter 3, p.164
98
AI, note 56
99
Statistics available at http://www.ago.gov.af/CONTENT/AboutAGO/Reports/YearlyR/YearlyRreportEng
100
128 The capacity of the justice system to handle the increasing flow of cases referred for investigation and prosecution has, however, been questionable.101 At the time that the ICPC came into force in 2004 a lack of available judicial personnel meant that 9% of the courts and 12% of prosecutor’s offices were operated only by administrative staff.102
Moreover, the administration of the courts was seriously handicapped by a shortage of support staff. The number of administrative personnel working for the judiciary equated to only 60% of the total number of judges and those in prosecutors’ offices represented only 23% of the total number of prosecutors.103 By the time of the last in-depth analysis of the justice system in 2007 the AGO was reported to have 4,900 employees, 2,500 of whom were prosecutors. However, prosecutors’ offices in the provinces were reported to be either ‘non-existent or placed in inadequate structures’104 and an estimated 80 districts had
no prosecutors’ office at all. These problems have been compounded further by a weak court infrastructure inherited by the Afghan state in the post-Taliban era and by a limited judiciary. In 2007 there were 442 courts across the country, comprised of 34 provincial courts and 408 primary courts.105 Of these, however, 97.8% required urgent reconstruction or rehabilitation work and 19% were not functioning at all. These limitations adversely affect the reach of the state justice system and the application of state criminal law such as the ICPC.106
The weak capacity of the judiciary has had similar consequences. In 2007 there were 1,415 judges employed by the Supreme Court to preside in the courts, although CHECCHI reported that in reality only 1,107 were actually working in them, 12% of whom had been appointed before 1978.107 Adopting these figures there were 21,317 people per judge in Afghanistan and too few to consider the amount of cases awaiting trial. Many of those detained in Afghanistan’s prisons were incarcerated simply because there was no judge available to consider their case.108 In 2007 58% of the inmates were being held in Afghanistan’s prisons were being held in pre-trial detention waiting for their case to be
101 UNODC, note 78, p.52 102 Tondini, note 64, p.70 103 ibid 104
Bassiouni et al, note 100, p.10. In 2010 Uruzgan province had only 5 prosecutors, who were working in only 2 of the province’s 7 districts. None had a University education; Roder, note 80, p.18
105
UNDP, note 78, p.71 There has been no in-depth assessment of the status of the justice system since 2007
106
Bassiouni, note 100, p.26
107
UNDP, note 78, p.71
108 ibid, p.8. The report also noted regional variations in ‘population per judge’ figures. For example, in
129 adjudicated, a direct consequence of the lack of capacity in the formal justice system to process an increasing number of cases referred for prosecution.109
The proper application of the ICPC has also been hampered by the poor capacity of the country’s defence service. By 2005 there were only 170 lawyers registered with the Bar at the MOJ of whom only 50 were practicing.110 By 2007 their numbers had increased to 250.111 There are now reported to be 850 defence lawyers, equating to 30,000 people per defence counsel, only 50 of whom are members of the Afghan Independent Bar Association (AIBA).112 The result is that although the ICPC provides that defendants can be assisted by defence counsel of their choice, in practice there are insufficient numbers available to comply with this provision of the Code.113
There are, according to UNODC ‘huge gaps in the provision of legal defence’ in Afghanistan.114 A survey in 2008 reported that 81% of adult male prisoners interviewed did not have legal representation.115 UNAMA reported the following year that 82.5% of 931 detainees had not had a defence lawyer to represent them at any stage of their proceedings.116 In the majority of cases detainees had not been represented due to the unavailability of defence counsel.117 Monitoring conducted by the Women and Children Legal Research Foundation (WCLRF) in 2008 found that 57% of 900 women respondents facing criminal charges presented their cases without representation and that the potential for obtaining representation varied considerably between provinces.118 In some provinces insecurity has contributed to the poor provision of defence representation. Helmand, for example, had no defence lawyers at all until September 2008 when security was considered sufficiently stable for the International Legal Foundation (ILF) to establish an office there.119 By 2010, however, there were only 4 defence lawyers for the whole
109
Tondini, note 64, p.70
110
UNAMA, Overview, note 78, p.5
111
UNODC, note 78, p.53
112
Wong, K. Afghan Corruption Threatens US Strategy, Galbraith Says, ABC News, 01.04.2010 available at http://abcnews.go.com/Politics/Afghanistan/afghan-corruption-threatens-us-strategy-
galbraith/story?id=10251489&page=2
113
ICPC, article18(3); 2004 Constitution, article 31
114
UNODC, note 78, p.53
115
ibid, p.42
116
UNAMA, Arbitrary Detention, note 78, p.13
117
ibid
118 The higher instances were in Kabul and the lowest in Balkh province. WCLRF ‘Women’s Access to Justice.
Problems and Challenges (2008) available at
www.wclrf.org/English/eng_pages/Resources/Women_a_t_Justice/WATJ.pdf, p.22-23
119
130 province but they refused to act in cases outside the capital of Lashkar Gah due to security concerns.120
In some instances defendants are reportedly denied access to legal representation because they have not been informed of their rights to receive it by legal authorities contrary to the provisions of the Code.121 A 2007 report observed that ‘many judges and prosecutors do not fully recognise or respect the role of defence attorneys’122
resulting in ILF defence lawyers being denied access to appear at trial or given little or no notice of trial hearing dates. The same report also referred to incidences where defence lawyers were deliberately obstructed in their ability to defend clients by other professionals involved in the justice system and subjected to criticism and intimidation, included threats to withdraw their licences.123 UNAMA has reported further incidences of defence counsel dropping cases under pressure from other justice officials.124 The effective implementation of the sections of the Code that relate to representation by defence counsel is therefore being hampered by inadequacies in the capacity of the defence service and also by the failure of police, prosecutors and Judges to properly apply them. The problems relating to professional application appear to be the result of a deficient culture of criminal defence in the state system manifested by a lack of awareness amongst judges, police and prosecutors of the role of defence lawyers and an inclination for obstructing access to representation.
The apparent lack of regard by some legal professionals for both the role of defence counsel and the provisions of the Code relating to defendant’s rights of access to them were highlighted during the prosecution of the case concerning Assadullah Sarwari between 2005 and 2007. One of the grounds cited by the prosecution in the indictment as evidence of Sarwari’s guilt in relation to the offence of the ‘killing of countless Afghans’ was the fact that he had ‘interrupted the investigation by asking for a lawyer.’125 This was
only one of a number of procedural irregularities during the trial which, according to
120
Interview, UK Justice Advisor, 24.02.2010; Walker, E.L. Culturally-Attuned Governance and Justice in
Helmand Province, Afghanistan, International Media Ventures (April 2010) available at http://www.Governance%20and%20Justice%20in%20Hlemand%20-%20WALKER1.pdf
121
ICPC, article 5(7); UNAMA, Arbitrary Detention, note 78. This was the case with 15.6% of the interviewees, p.13
122
UNAMA, Overview, note 78, p. 18
123
ibid
124
UNAMA, Arbitrary Detention, note 78, p.13
125
131 UNAMA, included a ‘failure to appoint defence counsel.’126 In spite of this Sarwari was
eventually found guilty at the National Security Primary Court and sentenced to death.
The potential for defendants to obtain legal representation in accordance with the provisions of the ICPC has been restrained not only by the improper application of the Code by legal professionals but also by the inadequate provision across the country of a legal aid scheme to provide legal advice and assistance to individuals facing criminal charges. Article 31 of the 2004 Constitution commits the Afghan government to provide legal aid services. In compliance with this the ICPC entitles defendants to free legal assistance, which should be available under a legal aid scheme.127 The legal aid service in Afghanistan is largely dependent on the resources of a number of NGO’s, some of which have made considerable contributions towards supporting it.128 Defence lawyers from ILF handled 3,275 cases between 2003 and 2007 in which 66% of defendants were released before or shortly after trial and only 12% received prison sentences of more than 1 year.129 Moreover, between 2006 and December 2008 the Da Qaanoon Ghushtonky organisation secured the release of 50% of 4,000 detainees to whom it provided legal assistance and in 80% of the remaining cases defendants received reduced sentences because they were represented with the assistance of legal aid.130
These statistics demonstrate a significant correlation between the provision of legal aid and defence representation on the one hand and a reduction in sentencing and conviction rates on the other, illustrating the potential benefit of having a legal aid system accessible to the public that can deliver access to justice. Unfortunately, however, the legal aid service in Afghanistan remains largely inadequate. It is poorly monitored by the Supreme Court and latterly the MOJ and it remains largely misunderstood by the public and legal community.131 While this remains the case it is likely that defence representation will discriminate against the poor. Of 1350 respondents interviewed by WCLRF in 2008 96% who did not have a defence counsel during criminal proceedings had no income at all.132 Until a sustainable legal aid scheme is developed that can ensure access to legal defence 126 ibid, p. 36 127 article 19, ICPC 128
UNODC, note 78, p.53; CIDA project running from 2007-2010 available at http://www.afghanistan.gc.ca/canada-afghanistan/projects-projets/institutions5.aspx
129
Statistics available at http://www.theilf.org
130 UNODC, note 78, p.53 131 ibid 132 WCLRF, note 118, p.17
132 for all those requiring legal aid the ICPC is likely to be implemented in a discriminatory manner, exacerbating its potential for creating injustices.
The inadequate provision of legal aid together with the poor capacity of the defence service and the insufficient referral of defendants to defence lawyers by legal authorities for representation are likely to be contributing factors to the propensity of judges to convict