Declaration Of The Supreme court of the Islamic … Bulletin of the Supreme Court 1 Declaration Of...

Special Bulletin of the Supreme Court

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Declaration

Of

The Supreme court of the Islamic Republic of Afghanistan

It has been noticed that some experts, in their interviews with media, criticize the establishment of the Electoral Tribunal and even consider it contradictory with the Provisions of Afghan Constitution. Although the Supreme Court was initially silent avoiding comments in this regard as required by its judiciary position, but later on, it decided to enlighten public mentality by justifying the legitimacy of this court to appease their concerns with regard to this matter.

In light of the provision of Article 120 of the Constitution which guarantees for all real and legal persons, including the State, the right to file cases with courts of the judiciary and in accordance with Article 123 of the Constitution which authorizes and prescribes the establishment of courts in case of need, and in accordance with Article 50 of the Law on Organization and Jurisdiction of Courts which further stipulates that processing all claims and complaints, including civil and criminal cases of real and legal persons, is within the authority of the judiciary, all the courts are authorized to handle the civil and criminal cases in accordance with the provisions of the enforced laws. The four special areas that are excluded from the jurisdiction of the judicial organ in Article 122 of the Constitution are the sole exceptions. It should be mentioned with regrets, however, that some persons, while talking to media, do not analyze the


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provision of the Article 122 of the Afghan Constitution. Instead, their views in terms of the law create confusion among public.

Therefore, the Supreme Court announces that the electoral tribunal that has been established by presidential decree and is aimed at facilitating the assessment of complaints, acceleration of the process and prevention of waste of time, has the status and credibility of a legal court, is part of the Afghan Judiciary and demonstrates rule of law in accordance with the provisions of the Law on Organization and Jurisdiction of Courts and the Afghan Constitution. There are no legal concerns associated with this court and this matter should not create any skepticism.

Administration Development and Reform

A) Chief Justice and Acting Head of the Supreme Court Holds Meeting with NATO Governance and Rule of Law Stabilization Envoy for Afghanistan

His Excellency Abdul Salam Azimi, Chief Justice and Acting Head of the Supreme Court, met with NATO Governance and Rule of Law Stabilization Envoy for Afghanistan Burkhart Dukopherry in his office in the afternoon of December 22, 2010.

At the onset, His Excellency Chief Justice cast light on the judicial system of the country, mentioned the activities and achievements of the judiciary in various areas including rule of law, judicial justice, capacity building, administrative reform, increased responsiveness of judicial staff in timely handling of cases, progress in rehabilitation and building of courthouses, equipping offices with modern office technology, and anti corruption efforts and its interesting results. He also praised the


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role of NATO and ISAF especially their support to building or reconstruction of primary and appellate courthouses and the donation of technical equipments, modern office supplies and vehicles by 435 taskforce and encouraged continuation of such assistance in the future.

Reciprocally, Mr. Burkhart stated that NATO forces not only work towards ensuring reliable security in the country but also try to provide financial and technical assistance to Afghan government entities. He added that providing funding and assistance to judicial entities, especially in the provinces, is one of the priorities of PRT and NATO forces. He assured of the continuation of technical and financial assistances specifically catered to the needs of the judicial power.

Some thoughts were also exchanged in this meeting on mutual cooperation and assistance.

B) US Rule of Law Ambassador Gives Assurance to Afghan Chief Justice and Acting Head of the Supreme Court on the training of Judges Protection Unit

US rule of law ambassador Hans Klemm assured Afghan Chief Justice and Acting Head of the Supreme Court of training to be conducted by US judicial police for Judges Protection Unit established by Afghan Ministry of Interior.

At the onset, His Excellency Chief Justice briefly touched upon the activities and achievements of the Supreme Court in line with the plan and strategy of the judiciary and explained the priority areas for the upcoming years mentioning the outcomes of implementation of the former plans in the areas of judicial cadre


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capacity building, anti corruption, administrative reform and training programs organized with support from some NGOs and called for cooperation of the international community in equipping the Supreme Court with modern technology as a priority area for the upcoming five years.

Reciprocally, Hans Klemm assured the Chief Justice that US judicial police will undertake the training of the Judges Protection Unit established by Ministry of Interior, and will also make efforts to further expand this unit with a view to provide better security for courts. He also pledged to help the Supreme Court in pursuing its work plans and strategies to ensure justice and rule of law. His Excellency Chief Justice, in turn, appreciated the assistance extended by US.

C) European Union Pledges Support to Operational Priorities and Strategies of the Supreme Court

European Union supports the operational priorities and strategies of the Supreme Court, says European Union ambassador in his meeting with His Excellency Chief Justice and Acting Head of the Supreme Court.

The meeting took place in the office of His Excellency Chief Justice. At the beginning of the meeting, His Excellency Chief Justice talked about the recent evolutions and developments in the judiciary including capacity building, enhancement of professional competencies of judges, streamlining of administrative process, enhancing anti corruption activities and providing transportation for judges adding that today the Supreme Court has enough capacity to address its organizational issues. Increment in salary and benefits of judges


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has resulted in their increased accountability and better discharge of duties especially in the fight against administrative corruption. With the support from international community, the Supreme Court aims to have more achievements in stabilization of judicial system and professional capacity building to provide better judicial services.

His Excellency Chief Justice also touched upon the plans of the judiciary and appreciated the role of the European Union in implementation of the fundamental plans of the Supreme Court and commented that all those programs were important for administrative reform and capacity building of judges.

The European Union ambassador, in turn, expressed pleasure over the fruitful advancements and developments in the judicial sector and stated that the European Union supports the present government especially the judicial power for its key role in providing unbiased justice and equal implementation of laws. He also underscored that the European Union strongly supports the operational priorities of the Supreme Court and that they will spare no efforts in achieving them with the help of the international community.

D) Excerpts from the Important Decisions of High Council of the Supreme Court

The session of the High Council of the Supreme Court was held on 21st December 2010. Chaired by His Excellency Chief Justice and Acting Head of the Supreme Court Abdul Salam Azimi, the session addressed matters included in the agenda.


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At the onset, in line with Article 120 of the Constitution “The authority of the judicial organ shall include handling of all cases filed by real or legal persons, including the state, as plaintiffs or defendants, before the court in accordance with the provisions of the law” and in consideration of Article 122 of the Constitution “No law shall, under any circumstances, exclude any case or area from the jurisdiction of the judicial organ and submit it to another authority”, the council approved the establishment of the tribunal dedicated to handling the civil litigations of fraud in parliamentary elections and instructed the secretariat to submit to the office of the President the organizational structure of this court for Presidential approval. The council asserted that by formation of this court cases will be handled with due precision, impartiality and judicial independence; thus, the responsibility of the judiciary in providing justice will be discharged. Also, anti corruption primary court was assigned to distinguish the civil and criminal cases related to parliamentary candidates referred by Attorney General’s Office and submit the civil cases to the mentioned newly established court.

Later the bribe case of Abdurrahman Walizai, former member of the appellate court of Ghor Province was considered in presence of the prosecutor, defense attorney and the accused. After hearing the indictment and the statements of both parties, the council convicted him to two years custodial imprisonment as of the arrest date, dismissal from judicial profession and cash fine equivalent to the amount taken in bribes in conformity with the provisions of Articles 254 – 255 and Article 275(2) of the penal code.


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The session continued with addressing some other judicial and administrative violations and appropriate disciplinary punishments were prescribed for a number of former judges of public rights, commercial, civil and personal status divisions of Kabul appellate court, a member of Khost primary court and the former in charge of deeds of the second district of Kabul city on charges of delayed processing of cases and administrative violations in view of the report of the judicial inspection department and the view of Research and Studies Department and in conformity with the regulation on handling judicial violations.

Next, the case of conflict of jurisdiction between the military primary court of national security and the primary court of district 1 of Kabul city was scrutinized. As a result, the military primary court of national security was considered as the authorized entity to handle the case.

In addition, in consideration of the report of military prosecution department of Dai Kundi Province stating that the appellate court of Dai Kundi Province does not handle cases of military administrative corruption of that province due to lack of jurisdiction. In order to facilitate timely handling of the cases, the high council of the Supreme Court delegated to public security division of the urban primary court and appellate court of Dai Kundi Province the authority to handle such cases in primary and appeal phases.

Similarly, the request of De Afghanistan Bank, Bank Milli Afghan and Pashtany Bank on obtaining their loans was considered in presence of the advisor of De Afghanistan Bank and once again with endorsement of the previous approval confirmed that the


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banks can sell the properties of the lessers and advised the concerned courts to handle these cases within the determined timeframe in case they don’t have reasonable reasons for delaying them.

Another agenda item was the addressing of some requests for appeal or changing of courts in criminal and civil cases. As a result, only 2 requests of appeal out of 10 requests were accepted due to existence of new evidence and also from 4 requests for change of court, 2 of them were accepted due to existence of reasonable reasons. Also, transfer of cases between district courts of Kabul city was approved.

The High Council of the Supreme Court held another session on January 11, 2011 chaired by His Excellency Chief Justice and Acting Head of the Supreme Court Abdul Salam Azimi and discussed the agenda items.

In this session, at first the report of the judicial inspection department and research and studies department about incorrect implementation of the Presidential decree No. 36 dated 01/02/2010 on alleviation of the punishment of prisoners was scrutinized and the secretariat was advised to summon the head of public security division of Khost appellate court to the next session in order to explain the matter. In addition, the secretariat was advised to summon the two judges of public security division of Kabul appellate court, who have delayed the case of an accused for more than one year, to the next session. Moreover, based on the report of the judicial control and inspection department and the view of research and studies department, a former head of appellate court of Wardak Province and the head of public security division of the same


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court were sentenced to 5 – 5 days salary deduction due to dereliction of duty according to the regulation on violation of judges.

The council also discussed the report of the judicial inspection department on the cases in appellate court of Paktika Province that have not been handled due to incomplete judicial quorum. It was decided as a result of the discussion that the judicial inspection department should initially get information on the number of pending cases both in the primary and appellate courts and report the same. Also, the general administration of judiciary was ordered to second judges from capital for the time being to handle the pending cases of Paktika Province.

Regarding the request for guidance of the Department of State Cases and Bank Milli Afghan about the merchants who have taken loans from Bank Milli Afghan by guarantee of their immovable properties but have failed to pay their debts within the determined time period leading to financial loss on the part of the bank, and in such cases the according to Article 16 of civil procedure code and Article 249 of commercial procedure code the judicial rulings are considered final with no further right to appeal but some merchants resort to appeal and cassation violating the law and guidelines of the Supreme Court, the high council of the Supreme Court confirmed the view of the Research and Studies Department which states that those court decisions that are based on confession before the judge in the court are considered final and binding and that such judicial rulings shall not be subject to appeal.

Regarding the registration of the waivers dated 1905 and the deeds dated 1893 related to the documents of the inherited


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properties that are not registered with the government, it was advised that according to Article 287 of civil procedure code and Article 991 of civil law the provisions of the above mentioned articles are not applicable to older documents according to the rule that law does not have retrospective effect. The land management law provides that such documents shall be changed to official documents after the process of scrutiny when the land is not found to be part of the state property and no nullifying documents are presented by any third party. Therefore, the owners of such lands are advised to refer to Office of the President and request the appointment of a delegation for this matter.

As for the request for guidance of the appellate court of Balkh Province stating that the cases of crimes against internal and external security used to be handled by public security division, but after formation of the division on crimes against internal and external security within the urban court, the public security division is now refusing to consider such cases, the general administration of judiciary was advised to appoint the seconded judges of the public security division in the newly established court so that they handle cases of crimes against internal and external security.

As for the request for guidance of Department of Lands of Ministry of Agriculture regarding 16900 jereeb land sold by Jawzjan governor to 10 persons in 1993 the legal deeds of which lands were also processed at that time, the council supported the view of the research and studies department that the representative of state cases department should process the law suit between the state and the persons.


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In addition, the high council of the Supreme Court also considered some requests for appeal or changing of courts filed by litigants, state cases department and attorney general’s office, and adopted appropriate decisions.

E) Excerpts from the Most Important Decisions of Coordination Meetings of Provincial Judicial Organs.

1) Coordination Meeting of Farah Province

On December 18, 2010, the coordination meeting of judicial organs of Farah Province was held in appellate courthouse of Farah Province under the chairmanship of the head of the appellate court of Farah Province. The meeting was attended by representatives of judicial and security entities of Farah Province. The meeting discussed agenda items including the proposal of Farah Prison about 9 jereeb lands which is under dispute by the prison and the police headquarters, an ill prisoner who remains in the prison without treatment, and the recommendations of military prosecution department on urgent handling of the case of a military official, and appropriate decisions were taken.

2) Coordination Meeting of Parwan Province

The 9th coordination meeting of judicial organs of Parwan Province was held on 15 December 2010 chaired by Amrullah Abdali, head of the appellate court. The meeting addressed agenda items including proposals of shelter and jail, and appropriate decisions were adopted.


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3) Coordination Meeting of Nimroz Province

The coordination meeting of the judicial organs of Nimroz Province was held on 12 December 2010 under the chairmanship of appellate court director Mawlawi Ataullah Fekri. The meeting was attended by representatives of judicial, security and administrative entities.

The meeting discussed arbitrary house searches. It was explained that, from a legal point of view, arrest, body search and house search are three different actions with different procedures and the steps for obtaining the permission for each of them are clearly set forth in the law. It is necessary that law be observed, unauthorized house searches should be stopped and offenders should be brought to justice.

Later on, the causes of increased traffic accidents in Nimroz Province were assessed and the department of traffic police was advised to investigate all traffic accidents according to law and refer the cases to prosecution department.

The head of properties unit of agriculture department, who was attending the meeting, talked about the complaints received and stated that the properties unit does not register properties that do not have official documents or a documented court decision. At the end of the meeting, the issues of Nimroz Prison were also discussed and appropriate decisions were taken.

4) Coordination Meeting of Faryab Province:

The coordination meeting of judicial organs in Faryab Province was held on 20/12/2010 .The meeting was presided over by the Chief Judge of Appeal Court. Members from Government’s


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Judicial, Security, and other organs also participated in the meeting. Various issues were discussed in the meeting and the following decisions were taken:

- It was suggested that the Prosecutor’s Office should inform the Directorate of Prison on the enforcement of decisions as soon as it gets informed, so that problems and confusions are avoided while provisions of amnesty and leniency of the President are being enforced.

- In terms of age determination, the ideas of the health commission were mostly inaccurate or sometimes even dual ideas existed regarding the age of one person, thus the attention of the Head of the Public Health Department was turned toward this issue.

- As there is no Forensic Medicine Center in Faryab which is required in some cases, and the Justice Department does not have the logistical capacity of transferring accused to the capital, therefore it was decided that High Committee on Coordination of Judicial Organs should be put on picture.

- Based on the proposition of Department of Women Affairs, the Judicial Organs were insisted to prioritize and accelerate handling cases of those women living in the Shelters.

5) Coordination Meeting of Kapisa Province

The coordination meeting of judicial organs in Kapisa Province was held on 22/12/2010. The meeting was presided over by the Chief Judge of Appeal Court. Competent members from Government’s Judicial and Security organs also participated in the meeting.


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In this meeting, several problems were discussed. Besides, the Security Commandment was asked to do their best in summoning accused. Based on the need of the Kapisa Prison, more assistance of the Police Commandment was demanded. The Police Commandment was also asked to avoid keeping suspects in custody for more than 72 hours and assist application of law. Regarding construction of new building for the Prison, the map of which has previously been sketched, the Municipality was notified to take effective measures in providing the allocated area for the Prison.

6) Coordination Meeting of Daikundi Province: The coordination meeting of judicial organs in Daikundi Province was held on 23/10/2010. The meeting was presided over by the Chief Judge of Appeal Court. Members from Government’s Judicial, Security, and other relevant Provincial organs participated in the meeting. The following decisions were taken in the meeting:

- According to the proposition of the Human Rights Department regarding a rape case of a girl in Getti District, based on the details provided by the Prosecutor’s Office, it was decided that the case shall be handled following the legal processes. - A decision was taken on the existing problems of Prison Directorate regarding the case of a woman who was convicted to five years of house custody by the Criminal Division of the Appeal Court but her family is not ready to receive her from the Prison. It was agreed upon that this decision has to be taken in coordination with Department of Women Affairs, Provincial Head of Human Rights and UNAMA Office. - In regard to the proposition of representative from the Police Headquarter regarding implementation of the final


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decision of the Courts which are, at the beginning, pronounced to the litigants, but sometimes, after a while, one of the litigants disagrees, it was decided that the Police Headquarter and Justice Department should take a decision in this regard deeming the provisions of the law, till the next meeting. - Besides, arguments took place regarding a case of transporting weapon, in which the Primary Court had convicted the accused to imprisonment, but the Appeal Court has acquitted the convicts. This issue was adjourned to next meeting. During the meeting dated 22/12/2010 which was also presided over by the Chief Judge and representatives from judicial and security organs, the following decisions were taken:

- Regarding the proposition of Department of Justice and Appeal Prosecutor’s Office on summon of absent accused and defendants, in which Police Headquarter is not paying any assistance, it was decided that the representative from the Police Headquarter should raise the issue and report the result in the upcoming meeting. - The issue of implementing the Courts’ decision on the case of Mr. Ghulam Haider, who was convicted but the decision is not yet applied, the decision in this regard was adjourned to the next meeting so that the Police Headquarter and Justice Department present their information on the issue.

Regarding the Fight against Corruption

a. Activity Report from the Anti-Corruption Appeal Tribunal Kabul Province

From 21/11/2010 – 09/01/2011 the Anti Corruption Appeal Tribunal of Kabul Province handled 32 cases related to corruption and issued decision. During these trials 64 accused


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have been tried out of whom 21 person were acquitted and 43 persons were convicted to punishment. Out of these 43 persons, 17 persons were convicted to custodial imprisonment, 10 persons to custodial imprisonment and pecuniary punishment and 20 persons convicted to pecuniary punishment only.

Table Reporting Decisions Taken by Kabul Anti-Corruption Appeal Tribunal

Year 1389 (Month: 9th and 10th)

Judicial Decision

No

. of

Accu

sed

No

. of

Cas

es

Type of Case

No

Am

ou

nt o

f P

enalty

Cash

Pen

alty

Cu

stod

ial im

priso

nm

ent

and

cash

pen

alty Cu

stod

ial im

priso

nm

ent

No. of Convict

s No

. of

qu

ittances

Fem

ale

Male

Fem

ale

Male

48000 5 5 . 10 12 1 21 10 Misuse of

Power 1

5674075 8 6 8 4 18 7 4 25 12 Fraud and embezzlement 2

26000 4 4 . 4 . 4 3 Bribery 3

. 2 . 4 . 6 . . 6 4 Counterfeit 4

. . . . . . 1 . 1 1 Breach of trust 5

. . . . . 1 . 1 1 Violation

against public servant

6

3000 1 . . . 1 . . 1 1 Illegal Transaction 7

5751075

20

10

17

4 39

21

5 59

32

Total


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This statistic shows that the crimes resulting from administrative corruption registered in this Court are: Misuse of power, embezzlement, counterfeit of documents and bribery. The crimes of power misuse and embezzlement show an increase in proportionate with other committed crimes. The number of people accused in such crimes, is high and have also inflicted more casualties to the Government.

b) Summary of Sample Decisions Taken by Kabul Anti Corruption Appeal Tribunal

1) Conviction on accusation of (100000) USD embezzlement from private bank Date: 06/11/2010

According to the complaint of President of a private bank based in Kabul City regarding embezzlement of 100,000 USD, the police have arrested the cashier and bank manager. During the open session of Primary Court’s Public Security Division dated 07/09/2008, according to article 130 of Constitution, the Court convicted both of the accused. As the Public Attorney was not convinced by the decision, the case was referred to Anti Corruption Appeal Court of Kabul Province. This Court reversed the decision of the Primary Court and convicted the accused cashier based on the provision of article 268 and 273 of Penal Code on 6 years of custodial punishment and return of (100,000) USD equaling the amount embezzled. The other two persons were convicted to 50,000 AFN pecuniary punishments due to duty negligence.


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2) Five years Imprisonment due to Misuse of Power against Foreigners Date: 23/11/2010

A police officer from Anti trafficking Department of the Interior Ministry arrested 4 Nepalese accused of counterfeited visas without any prior plan and permission of the authorities and wandered them around the city in his personal car and obtained an amount of 1500 USD and 8 passports from them without any formal involvement of the authorities. He was accused of power misuse and usurpation of 1500 USD. Thus, his case was referred to the Primary Court after inquiry. The Primary Court issued a judgment in an open session dated 14/10/2010 and convicted the accused on three years of custodial imprisonment applicable from the time of arrest as well as return of the amount to the offended persons. Besides, one of the victims came under legal prosecution for counterfeiting documents. As the judgment was not convincible for the Public Attorney, thus was referred to the Anti Corruption Appeal Tribunal. This Court amended the first decision and issued a new decision based on the provision of paragraph 2 of article 33 of Law on Organization and Competence of Courts as well as Paragraph 1 of article 42 of Law on Military Crimes. The accused was convicted to 5 years custodial imprisonment applicable from the day of arrest and the return of the amount taken as bribe to the victims and one of the victims also came under legal prosecution for counterfeiting documents.


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3) Five years Imprisonment due to Misuse of Power against Foreigners Judgment date 07/12/2010

Two officers from Police District 16 of Kabul stopped a car carrying 4 Canadians and their interpreter by firing a pistol shell. The car stopped and the officers began their body search as a result of which the officers acquired three pistols and some amount of money from the Canadians. The security personnel immediately reached the scene and arrested the two suspected officers and a guard who was concealing one of the seized pistols. They returned the seized tools back to real owners and referred accused to the Primary Anti Corruption Tribunal after the inquiry was completed. During an open session of the Court on 27/10/2010, each of the officers was convicted to 5 years of custodial imprisonment and the guard was convicted to 2 years of custodial imprisonment beginning from the day of arrest. After notification of the decision, the convicts disagreed on the decision and asked for appeal. Thus, the Anti Corruption Appeal Tribunal handled the case. This Court accepted the decision of the Primary Court and convicted the accused people on the same punishment as previously issued by the Primary Court.


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c) Summary of Decisions Taken by Primary Anti-Corruption Tribunal Kabul

1) Conviction on Accusation of Power Misuse (Arbitrary Arrest)

Date 23/11/2010

Head of the Kabul Female Detention Center illegally delayed to send an accused woman to the female prison by keeping her in her office as a servant who was convicted to one year and six months of custodial imprisonment by the Primary Court and ten months of custodial imprisonment by Kabul Urban Appeal Court. Thus, the convicted woman had spent 11 months and 23 days in the detention center. As a result, the Officer was arrested in accusation of misuse of power and arbitrary detention. The case was referred to the Anti Corruption Primary Tribunal after completion of inquiry. According to paragraph 1 article 42 of Military Law and paragraph 2 of article 145 of Penal Code, the accused officer was convicted to six months of imprisonment.

2) Conviction on Accusation of Power Misuse and weapon trafficking

Date 23/11/2010

Three border police officers from one of the North East Provinces of the country were arrested while smuggling different types of weapons in a Police Car, by Police Security Headquarter of Badakhshan Province. As a result of the car search 26 guns and rocket launchers and some other weapons


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were seized from the car. The accused people were handed over to the Kabul investigation authorities, after completion of their inquiries they were referred to the Primary Anti Corruption Tribunal. As a result of judicial proceeding of the Court, the three accused were realized as convicts. According to paragraph 1 of article 42 of Military Law, the accused were convicted to five years of custodial imprisonment, and for the weapons smuggling, according to article 9 of Counter Trafficking Law, each of the accused were convicted to 2 years of custodial imprisonment. According to article 132 of Penal Code, the accused were convicted to the most severe punishment of five years imprisonment and return of the weapons.

3) Misuse of Power:

Judgment Date: 29/11/2010

On the night of 26/03/2010 victim is taking his sick mother to the doctor by using a neighbor’s car. On the way, he is stopped by the Police check post and asked for the driving license. Because of not having a license, one of the Police officer seized the car and began to drive. As he drove out of the city by himself, on the way, the car was overturned. As the victim informed the Zonal Police, the Zonal Police arrested the Police Officer and referred his file to the Primary Anti Corruption Tribunal on accusation of power misuse. The case was handled during an open session of the Primary Anti Corruption Tribunal dated 29/11/2010 and based on paragraph 1 article 42 of the Military Law and article 155 of Penal Law, the accused was convicted to three years of custodial imprisonment.


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4) Conviction due to Power Misuse

Date 10/12/2010

On the night of 17/07/2010 two Police Officers stopped a car with two passengers (a man and a woman) and got the passengers out of the car in accusation of committing adultery. As a result of beating and forcing the victim, the police officers forcibly took two mobile phones, 6000 AFN and 200 USD along with a written debt document signed by the victim stating that the victim is indebted 100,000 AFN from the Police Officers and took the car documents as a deposit with them. The detective organs arrested the criminals after the complaints filed by the victims and received the money and documents of the victim back from them and handed them over to the victim. The case was referred to the Anti Corruption Primary Tribunal after completion of the inquiries. Based on the provision of paragraph 1 article 42 of the Military Law and article 100 of the Penal Code, the accused were convicted to three years and one month custodial imprisonment and 400 USD as pecuniary punishment.

d) Activity Report of Anti Corruption Appeal Tribunal of Herat Province

The Anti Corruption Appeal Tribunal of Herat Province has handled 18 criminal cases since the beginning of its establishment. As a result, 4 of the cases have been reversed due to legal defects existed in the files and has handled the rest 14 cases.


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Table 1 of Cases’ Report Handled by the Anti Corruption Appeal Tribunal Herat Province

(30/03/1389 – 23/08/1389)

Judicial Decision No. of Accus

ed

No of cases

Type of case

No.

Am

ount of cash fine

Cash fine

C

ustodial

imprison

ment &

cash fine

Custod

ial im

prisonm

ent

No. of Convi

cts

No. of

Acquittals

Fem

ale

Male

Fem

ale M

ale

10000 1 . 2 . 3 . . 3 3 Misuse of duty 1

240000

0 . 3 . . 3 . . 3 1 embezzlement 2

. 3 . . 3 . . 3 3 Bribery 35000 1. . . 1 . . 1 1 Counterfeit 45000 .1..1..1 1Overcharge 5

. . . 4 . 4 . . 4 1 Stealing states goods 6

12000 11 3 . 5 . . 5 4 Duty negligence 7

2432000 38 9 . 2

0. . 20 14 Total

Table 2: Cases refused based on Judicial Rulings for Completion of Investigation to the related organs

No

Case No of

Accused

Place of commission

and duty Reason of Ruling Related

Organ

1 Embezzlement 3 Education Dept. Herat

Multiplicity of crimes

Public Attorney

2 Bribery 1 Herat Police Correction Public Attorney

3 Missing duty 1 Correction Public Attorney

4 Duty negligence 1 Migration

Office Herat For determining

indemnity Public

Attorney

Analyzing the above statistics, the graph of crimes such as misuse of power, negligence in duty and taking bribe was high. During judicial proceedings, the Anti Corruption Tribunal


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convicted 20 person accused by the above mentioned crimes, all of whom were male. Out of these people 12 were convicted to custodial imprisonment between 6 months to 4 years, and 5 persons were convicted on custodial imprisonment and cash penalty and 4 persons convicted to cash penalty only.

Regarding Fight against Narcotics

a- The new Counter Narcotics and Intoxicants Law

Combating against use of narcotic substances and intoxicants has a long history in our country. There has been (Had) Punishments stipulated in Islamic Sharia for the users of these substances. Moreover, use of these substances has also been deemed crime and specific punishments have been stipulated for culprits in statutory laws of our country. Many laws, by laws, regulations and decrees have been issued in this regard by different ruling governments of the country, some of which are as follow:

Chapter 15, Articles 125 to 132 of the General Penal Code of Amani Regime (King Amanullah Khan), issued on 09/10/1923

Art 13, the regulation on prisons and detention facilities, issued on 06/01/1351

Art 12, basic rules of the government, issued on 23/12/1932

The regulation on opium, issued on 30/07/1956 The regulation on cultivation, trafficking, buy and sale,

export and import and use of opium in Afghanistan, issued on 23/11/1957


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Decree numbered 1164 dated 20/11/1991 of the President of Afghanistan regarding endorsement of National Assembly Approval on ratification of the United Nations Treaty on Illegal Trafficking of Narcotic and Psychotropic Substances, issued on Official Gazette numbered 760 and dated 20/01/1992

Decree numbered 53 dated 04/04/2002 of the Interim Government of Afghanistan on prevention of cultivation of opium and hashish and illicit production, importation, exportation, processing, marketing, transportation, possession and use of narcotic substances

Counter Narcotic Law, issued on Official Gazette numbered 741 dated 20/04/1991




The plurality of legislations on counter narcotic and intoxicants indicates the adaptability of the legislation system of Afghanistan with the new laws which come in force in all over the world. One of the newest laws enforced for this purpose is the Counter Narcotics and Intoxicants Law, issued on Official Gazette numbered 1025 dated 14/06/2010.

This law has been ratified by both houses of the National Assembly through Approval numbered 158 and dated 24/11/2009. Since it is ratified by both houses, based on provisions of Art 94 of the Constitution of Afghanistan, it is


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deemed endorsed. Based on decreed numbered 38 and dated 12/06/2010 of the President of Islamic Republic of Afghanistan, it has been sent to Ministry of Justice to be issued in the Official Gazette. This law comprises of 5 chapters and 67 articles.

As stated above, this law is the newest law in terms of counter narcotics and intoxicants and is currently in force. Based on Art 67 of this law, the older counter narcotics law issued on Official Gazette numbered 875 and dated 04/02/2006 has been abrogated.

This new law has amended most of the defects of the older laws and used highly professional legislation standards. Some of the main amendments are as follow:

1. On the contrary to the previous law, this law contains comprehensive provisions in term of Intoxicants, which is strongly prohibited in Islamic Sharia. Moreover, this law stipulates punishments for trafficking of intoxicants as well as its use.

2. On the contrary to the Penal Code, this law has not referred the (HAD) punishment of intoxicants to Islamic Jurisprudence Books, but has rather prescribed punishments for it in 5 clauses under Art 44 of this law.

3. This law has regulated provisions for inspection and investigation of crimes related to drugs and intoxicants, which has not been stipulated in the former procedural laws. These provisions have been compiled in chapter 2, articles 12 to 19 under “agencies in charge of handling the crimes related to drugs and intoxicants” and in chapter 3, articles 20 to 40 under “search, seizure and inspection methods”.


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4. On the contrary to the previous law which had granted the authority of destroying the confiscated drugs and intoxicants to the appointed prosecutor, this law has granted this authority to the competent courts based on the request of appointed prosecutor. This provision has been amended in accordance with articles 120 and 122 of the Constitution.

5. This law has specified the stages of intoxicants and drug related crimes such as alliance in crime, initiating the crime, recidivism, plurality of criminals and association in crime and has prescribed punishment for each of them, which will be of a quite importance for the prosecutors and judges dealing with intoxicants and drug related crimes.

6. This law has not prescribed “cash fine” because it is not completely compatible with punitive principals of Islamic Sharia, whereas the previous law had stipulated heavy pecuniary punishments of 30,000 to 10,000,000 AFN.

Based on aforementioned facts, it is safe to say that the new counter narcotic and intoxicants law has been prepared using the excellent legislative standards and inshallah will help solve most of the problems of judicial institutes dealing with drug and intoxicants cases.

b- Activity report of the Kabul Counter Narcotic Primary Court during first quarter of 1389

The News Bulletin Office is intending to publish the performances of the Kabul Counter Narcotics Courts conducted during 1389 on a statistical basis. This type of statistic of the Courts performances is reflecting the firm determination of the


28

Judiciary of Islamic Republic of Afghanistan in the applying criminal justice system of Afghanistan in terms of fight against narcotics. On the other hand, this statistic shows the number and cases of drug related crimes during 1389. We are endeavoring to provide the accurate statistics of the narcotics crime based on the criminological and sociological vision.

In this issue we have intended to publish the activities of the Counter Narcotic Courts conducted during the first three months of the current year as well as criminal cases that have been determined.

During this period, 183 persons were accused, out of which 7 persons were acquitted and 176 persons were convicted to imprisonment period of 5 to 20 years and fine cash of 500,000 to 2,000,000 AFN. Table1: drug related crimes during first quarter of 1389, type of

punishment and number of convicts

No

substance

Num

ber of cases

Amount in kg

Num

ber of accused

Verdict of the court

No. of A

cquittals N

o. of Convicts

Custodial imprisonment and cash fine

Cash fine in AFN

5-10 years

10 –15

years

15 – 20 years

1 heroin 46 493/4775 87 4 83 25 1 57 64411000

2 Opium 44 592/27354 70 2 68 25 . 43 53716000

3 hashish 6 3517 13 . 13 11 2 . 5610000 4 Morphine 2 800/50 3 . 3 . . 3 2110000

5 acid 5 9621 7 1 6 6 . . 3500000

6 facilitator 3 3 . 3 2 . 1 2000000

Total 106 885/45318 183 7 176 69 3 104

131347000


29

Table 2: number and specification of the convicts sentenced by

Counter Narcotic Primary Court during first quarter of 1389

Number of accused who were acquitted Number of the accused who were convicted

Female Male Female Male

Foreig

ners C

ivil servants O

rdinary peop

le

Foreig

ners C

ivil servants O

rdinary peop

le

Foreig

ners C

ivil servants O

rdinary peop

le

Foreig

ners C

ivil servants O

rdinary peop

le

. . 1 . . 6 1 . 4 . 18 153

Total: 7 Total: 176

Table 3: number of the convicts regarding their social and economical status and their positions

No Social and economical status and positions

Number of accused Percentage

1 Police 13 7.30

2 Driver 41 23.03

3 shopkeeper 18 10.11

4 jobless 5 2.81

5 farmer 31 17.41 6 merchant 5 17.42 7 laborer 45 2.81

8 People involved in educational activities 7 25.28

9 Doing house work 4 3.93 10 shepherd 9 2.25

c- Activity report of the Kabul Counter Narcotic Appeal

Court during first quarter of 1389 During this period, 116 drug cases were handled by this court. Through these cases, 165 persons were accused, out of which 7 persons were acquitted and 158 persons were convicted to


30

imprisonment period of 5 to 18 years and fine cash of 500,000 to 2,000,000 AFN. Table: activity report of Kabul Counter Narcotic Appeal Court during first quarter of 1389

No

substance

Num

ber of cases

Amount in kg

Num

ber of accused Verdict of the court

Num

ber of acq

uittals

Num

ber of con

victs Custodial

imprisonment Cash fine in A

FN

Imprisonm

ent and fine

5 – 10

years

10 - 15 years 15 – 20 years

1 heroin 38 107/2553 58 . 58 58 14 6 38 71380000

2 Opium 39 140 /1612 61 . 61 61 24 5 32 65340000

3 Hashish 11 55/9173 20 . 20 20 9 12 . 18330000

4 Morphine 3 106 3 3 3 1 . 2 3560000

5Heroin

and opium

1 50/21 4 . 4 4 . . 4 6040000

6 acid 9 667/4381 17 6 11 11 8 1 2 3070000

7 poppy 1 1100 1 1. . . . . . .

8 smuggling 1 . 1 . .1 1 1 2000000

8 total 103 019/18947 165 7 158 55 46 24 79 44070000


31

d- Verdicts of Kabul Counter Narcotic Primary Court

Date: 14/04/2010 A suspect, while smuggling drug, was arrested in Kabul International Airport. During investigation, he disclosed the identity of his accomplice who was a member of security force of the airport. The member of the security force of the airport was also arrested who confessed in associating with the smuggler. During the open session on 14/4/2010, in accordance with paragraph 6, clause 1 of Art 16, clause 1 of Art 21and clause 1 of Art 41 of Counter Narcotic Law, the accused was proved guilty and was convicted to 2 and a half years custodial imprisonment, confiscation of 750.000 US$ and a fine cash equivalent to this amount.

Date: 04/05/2010 On 05/02/2010, the counter narcotic police, together with ISAF troops, during an air patrol, arrested two suspects who were smuggling 2554 kg of heroin in Helmand Desserts. The suspects, who were also carrying weapons and a satellite phone, claimed to be car mechanics, not owners of the vehicle. Since the Taliban presence is prevailed in those areas, the detection delegation took some samples of the seized substances and set ablaze to the rest. During an open session on 04/02/2010, the Counter Narcotics Primary Court, in accordance with paragraph 6, clause 1 of Art 16 of Counter Narcotics Law, convicted each of them to 17 years of custodial imprisonment and 2,000,000 AFN cash fine for smuggling of 2,554 kg of heroin. As per carrying illegal weapons, in accordance with clause 2 of Art 22 of Counter Narcotics Law,


32

each of the accused was convicted to 3 years of custodial imprisonment and 500,000 AFN cash fine. Based on Art 156 of Penal Code, the punishments of 17 years of custodial imprisonment, 2,000,000 AFN cash fine and confiscation of proceeds of crime was ordered to be applicable. Date: 31/03/2010 On 31/12/2009, one of the police officers of Helmand province seized a vehicle carrying 90 kg of heroin. Instead of handing the seized vehicle over to the governmental authorities, he took the vehicle home so that he will be able to deal it back for money. He was then arrested by a joint mission of security forces while he was transporting the vehicle toward an unknown destination. When he was ordered to surrender, he opened fire against the security forces, but was arrested. During the open session on 31/03/2010, the Counter Narcotics Primary Court, in accordance with paragraph 6, clause 2 of Art 16 and Art 18 of Counter Narcotics Law, convicted the culprit to16 years of custodial imprisonment and 1,000,000 AFN cash fine for smuggling of 90 kg of heroin. As per creating obstacles against security forces, in accordance with clause 3 of Art 21 of Counter Narcotics Law, he was convicted to 5 years of custodial imprisonment and in accordance with Art 42 of this law, the seized substances was confiscated to the government. Based on Art 156 of Penal Code, the punishments of 16 years of custodial imprisonment, 1,000,000 AFN cash fine and confiscation of proceeds of crime was ordered to be applicable.

E- Report of the activities of Counter Narcotics Appeal Court of Kabul Province, 1385

During 1385, this court has handled 207 cases and issued verdicts accordingly which include 140 cases of opium, 50 cases


33

of heroin, 11 cases of hashish, 4 cases of chemical precursors and 2 cases of morphine that make a total of 10400,256 kg. There were 315 accused, 240 of whom were sentenced to punishment, 11 of whom were acquitted and 74 of whom either had disappeared or their cases had been rejected.

Report of the activities of Counter Narcotics Appeal Court of Kabul Province, 1385

Judicial decisions

Am

ount

of s

eize

d m

ater

ial

Num

ber

of a

ccus

ed

Num

ber

of c

ases

Typ

e of

crim

e co

mm

itted

No

46 a

ccus

ed e

ither

did

not

sho

w u

p w

hile

the

ir c

ases

wer

e in

pro

cess

or

the

ir ca

ses

wer

e re

ject

ed d

ue

to d

iffer

ent r

easo

ns.

Cas

h fin

e

15-20

yea

rs

cust

odia

l im

pris

onm

ent

5-15

yea

rs

cust

odia

l im

pris

onm

ent

1-5 ye

ars

cust

odia

l im

pris

onm

ent

acqu

ittal

5332

0000

A

FN

23

74 42

9

1236

9.42

0

kg

195

140

op

ium

1

1622

0000

AF

N

26

25

4 1

1357

.810

kg

79

50

her

oin

2

1110

0000

AF

N

7 25

1

4431

k

g

31

11

has

his

h

3

2000

000

AF

N

. . . 1

3177

k

g

7 4

Ch

emic

al

pre

curs

or

s 4

1500

000

AF

N

3

65 kg

3 2

mo

rph

ine

5

84140000 69 124

47 11 225/21400

315 207

Total


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A) Verdict of Counter Narcotics Appellate Court Severe Punishment for police officers on charges of drugs smuggling

Verdict Dated 29 August, 2006

Four policemen from Heart-Badghis highway police along with a drug smuggler had loaded a police Jeep with opium and were heading to Herat when they were stopped by counter narcotics police and National Security Department officers who were informed in advance by an undercover informant. As a result of the vehicle search, they obtained 222.700 kg opium with 6 guns and some ammunition from the accused. After completion of investigation, their case was referred to primary court for adjudication. The primary court convicted them with the charge of drug smuggling and sentenced each of them to 16 years custodial imprisonment and a pecuniary punishment of 1,500,000 AFN and confiscation of the instruments of crime. The convicted requested for appeal and hence their case was referred to counter narcotics appellate court. The appellate court, in its open session dated 29 August 2006, after hearing the statements of both parties finally approved of the decision of the primary court, convicted the appellants and sentenced each of them to 16 years custodial imprisonment and a pecuniary punishment of 1,500,000 AFN and confiscation of the instruments of crime.


35

B) Verdict of Primary Counter Narcotics Tribunal

Punishment for smuggling of 2530 kg of opium and 24 kg of Heroin

Verdict Dated 17 March 2010

Two smugglers, who were carrying 2530 kg of opium and 24 kg heroin by car along with a gun in Helmand Province, were arrested by coalition forces and 333 Unit. After primary investigation, their case was referred to court where in its open session dated 17 March 2010, considering judicial fairness and in compliance with principles of fair trial, the court scrutinized the case and as a result accepted the prosecutor’s reasons for conviction of the accused persons and dismissed as unreasonable the defense statement of their defense lawyer and convicted them for the following reasons.

Summary of the court decision:

According to the provision of articles 15 and 16 of Counter Narcotics Law, and in consideration of article 156 of Penal Code, each one of the accused persons is convicted and sentenced to 17 years of imprisonment and pecuniary punishment of two million AFN, each, in observation of articles 42 and 28 of Counter Narcotics Law and confiscation of the vehicle carrying drugs, one gun related to drug smuggling and a satellite phone.

News events

Based on reports of Judicial Control and Investigation Department, on 14/12/2010, the head of Anti Corruption Primary Court of Balkh Province was caught red handed


36

while receiving an amount of 5,000 $ as bribe. His case is under investigation.

Based on reports of Judicial Control and Investigation Department, on 19/12/2010, the head of Civil Division of Appeal Court of Daikkundi Province was caught red handed while receiving an amount of 100,000 AFN as bribe. On the same day, one of the administrative staff of Kabul Appeal Court was caught red handed while receiving an amount of 2,500 AFN as bribe. The cases are under investigation.

On 20/12/2010, Qazawatmal Lieutenant General Abdul Khliq Haleem, head of Military Appeal Court of the Supreme Court, met with Dr. Gregory, head of anti corruption component of EU Police. During the meeting, the problems of Military Appeal Court, Anti Military Corruption Courts and training of judges were discussed, regarding which the delegation pledged their assistances.

On 18/12/2010, Provincial Council of Helmand Province awarded an appreciation letter to Mohammad Hussain Najibi, head of Appeal Court of Helmand Province for his effective role on bringing a good coordination among judicial, security and other governmental institutions of Helmand Province.

On 22/12/2010, Qazawatpoh Abdul Ahad Amhan, head of Appeal Court of Logar Province, participated in the meeting held on Municipality Hall of this Province to seek solutions for the current problems of the province. In this meeting, the governor, a number of senators, first deputy of the Senate, head of Provincial Council, heads of different divisions of the courts and influential people of


37

Khost and Paktia Provinces had also participated. The head of the Appeal Court shed light on their activities on eradication of corruption, timely and transparent performances of the courts and judicial education programs.

On 22/12/2010, Mr. Dil Aqa Himat, head of Appeal Court of Kandahar Province, together with the head of Urban Primary Court of this province paid a visit to primary courts of Boldak and Takhta Pul Districts of Kandahar Province. While controlling their performances, the delegation provided the staff of the courts with helpful instructions and guidelines on improving their daily activities.


38

Declaration of the Supreme court of the Islamic Republic of Afghanistan….…1 Administration Development and Reform……………………………….………..2

Chief Justice and Acting Head of the Supreme Court Holds Meeting with NATO Governance and Rule of Law Stabilization Envoy for Afghanistan………………………………………………………………..2

B) US Rule of Law Ambassador Gives Assurance to Afghan Chief Justice and Acting Head of the Supreme Court on the training of Judges Protection Unit…………………………………………..………..3

C) European Union Pledges Support to Operational Priorities and Strategies of the Supreme Court………………………………………..4

D) Excerpts from the Important Decisions of High Council of the Supreme Court…………………………………………………………….5

E) Excerpts from the Most Important Decisions of Coordination Meetings of Provincial Judicial Organs………………………………11

Regarding the Fight against Corruption……………………………………….15 a. Activity Report from the Anti-Corruption Appeal Tribunal Kabul

Province…………………………………………………………………15 b) Summary of Sample Decisions Taken by Kabul Anti Corruption

Appeal Tribunal…………………………………………………………17 c) Summary of Decisions Taken by Primary Anti-Corruption Tribunal

Kabul……………………………………………………………………..20 d) Activity Report of Anti Corruption Appeal Tribunal of Herat

Province…………………………………………………………………22 Regarding Fight against Narcotics……………………………………..24 a. The new Counter Narcotics and Intoxicants Law…………………24 b.Activity report of the Kabul Counter Narcotic Primary Court during

first quarter of 1389……………………………………………………..27 c.Activity report of the Kabul Counter Narcotic Appeal Court during

first quarter of 1389……………………………………………………..29 d. Verdicts of Kabul Counter Narcotic Primary Court………………..31 Report of the activities of Counter Narcotics Appeal Court of Kabul

Province, 1385……………………………………………………………32 A) Verdict of Counter Narcotics Appellate Court…………………….34 B) Verdict of Primary Counter Narcotics Tribunal ……………………35

News events………………………………………………………………………..35

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