Chapter Two : Fundamental Rights and Duties of Citizens

Article Twenty-Eight

No citizen of Afghanistan accused of a crime shall be extradited to a foreign state without reciprocal arrangements as well as international treaties to which Afghanistan has joined. No Afghan shall be deprived of citizenship or sentenced to domestic or foreign exile.

Chapter 1 General Principles and Definitions

Article 7

Extradition and Claimant of the 'Right of Man'

Provisions of this law do not interfere with the right of extradition or demanding the replacement of the claimant of the “"Right of Man”.

Chapter 1 General Provisions

Article Four

Legality of extradition

An accused [or]convict will be extradited, and legal cooperation between Afghanistan and other countries to address criminal cases, is to be provided based on treaties or conventions to which Afghanistan is a party.

Chapter 1 General Provisions

Article Five

Sending/Accepting the request

A request to extradite an accused or convict, [or a request for] legal cooperation under this law is to be sent via the Ministry of Foreign Affairs to the [foreign country’s] diplomatic mission [inside Afghanistan] or to the Foreign Ministry of the requesting country. A request of a foreign country in aforementioned circumstances is accepted through the same mechanism.

Chapter 1 General Provisions

Article Six

Limitation of extradition

The extradited person is to be imprisoned or punished, investigated and tried only in relation to the crime [for which] he is being extradited.

Chapter 1 General Provisions

Article Seven

Prohibition to extradite women and children

Women or children who are Afghan nationals, or a foreign stateless child, cannot be extradited to any foreign country, and shall be prosecuted pursuant to Afghan law.

Chapter 1 General Provisions

Article Eight

Extradition of foreigner to a third country

A foreigner shall [only] be extradited to a third country if there is an existing treaty between Afghanistan and the foreigner’s country.

Chapter 2 Extradition

Article Nine

Mechanism for sending a request

(1) The Attorney General shall decide whether to send a request seeking extradition of a suspect or accused from a foreign country, whereas acceptance of [such a] request sent by a foreign country is referred by the Attorney General [with a recommendation] and approved [or rejected] by the High Council of the Supreme Court. When a convict is also a suspect or an accused in a second crime, his extradition shall be subject to the same order [of the High Council of the Supreme Court].

(2) Extradition of an Afghan who is convicted for imprisonment by a competent foreign court, or acceptance of a request from a foreign country for extradition of a foreigner who is convicted for imprisonment by a competent Afghan court, shall be decided by the Minister of Justice.

(3) The Ministry of Foreign Affairs is required to send a request for extradition to relevant authorities of [the target country] in conformity with paragraphs 1 and 2 of this article.

Chapter 2 Extradition

Article Ten

Contents of the request and its attachments

(1) The request for extradition and its attachments shall include:

a. Name and title of competent authority of Afghanistan [making the request].

b. Name and title of competent authority of the receiving country.

c. If the individual is an accused, an original or a verified copy of AGO’s or the competent court’s warrant for his arrest and extradition.

d. Explanation and details of the crime committed.

e. Explanation about degree of involvement of the individual in commiting the crime.

f. If the individual is an accused, a copy of the indictment including the article that specifies the crime committed and prescribes the punishment for the crime.

g. Article of the law, agreement, or convention upon which extradition of the individual is requested.

h. Information about the identity of the individual for whom extradition is requested and any other type of data pertaining to his/her full identity, nationality, residence or occupation, or other evidence such as picture, fingerprint, DNA, blood group, and other information that shall help identify the criminal, [as well as] tools of commission, and benefits [money and assets] derived from commission of the crime.

(2) The request for extradition of a convict shall also include, in addition to the provisions of sections a and b of paragraph (1) of this article, [information about] his full identity.

Chapter 2 Extradition

Article Eleven

Requirements for accepting the request

(1) A request for extradition of an accused to be investigated or tried will be accepted for consideration under the following requirements:

a. The crime that the suspect or accused is being extradited for shall be mentioned in the extradition treaty.

b. Commission of the act shall be considered a crime in the laws of both Afghanistan and the foreign country, and the punishment for the act shall be [imprisonment for] more than a year in laws of both the countries.

c. [The party requesting extradition] shall commit to abide by the provisions of the UN Convention on Civil and Political Rights and UN Convention against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment while investigating and trying the individual whose extradition is being requested.

d. [The party requesting extradition] shall commit to provide information regarding the process of investigation and trial, or any change in the status of the extradited individual.

e. Avoiding double jeopardy for the individual whose extradition is requested, based on a final verdict of the court in relation to the crime committed.

f. Compliance with provisions of paragraph (1) of Article 10 of this law.

(2) A request for extradition of a convict for[purposes of ] imprisonment will be accepted for consideration provided the following requirements are met, in addition to compliance with the sections a, b and c of paragraph (1) of this article:

a. Conviction of the individual by a final verdict of the court [shall be] for more than one year of imprisonment

b. If sentenced to both imprisonment and a fine, [the money shall be] paid or a guarantee for payment of it [shall be received].

c. Commitment to avoid double jeopardy

d. Commitment to share information on any type of change [that may occur] in status of the convict.

e. Compliance with provisions of Article 10, paragraph (1) of this law.

Chapter 2 Extradition

Article Twelve

Time limit for sending the request

The Ministry of Foreign Affairs shall immediately send the request of extradition and its attachments to the relevant authorities after it is assured that the request abides by provisions of Articles 10 and 11 of this law.

Chapter 2 Extradition

Article Thirteen

Taking proper measure as per the request

(1) When Afghanistan requests extradition of an accused from a foreign country, the Attorney General’s Office collects the reasons and evidence regarding commission of the crime and sends the request for extradition to the Ministry of Foreign Affairs.

(2) When a foreign country requests extradition of an accused from Afghanistan, the Attorney General’s Office undertakes the following measures:

a. Review of the request based on the allegation attributed.

b. Collection of information about the personality and background of the accused to be submitted to the foreign country.

c. Arrest of the individual based on an order of the court and notice to the accused of the allegation [against him]. d. An investigation of the suspect or accused.

e. Presenting the request for extradition to the Supreme Court.

(3) The High Council of the Supreme Court may, upon request by the Attorney General’s Office, issue an order to search the location where the arrest took place, other suspected places, and/or seize or freeze money recovered from the arrestee either during the arrest or as detected later.

Chapter 2 Extradition

Article Fourteen

Rights of arrestees

(1) Any foreign citizen or a stateless individual residing in Afghanistan who, on the basis of a request from a third country, is arrested, taken into custody or detained, is entitled to the following rights:

a. Immediate contact with the [diplomatic] mission of his country or any other person who has the authority to protect his rights.b. Meeting between the stateless individual and the representative of the country where he has habitual residence.

c. Advise of rights under sections a and b of this paragraph.

(2) When contact and meeting under sections a and b of this paragraph (1) are impossible, the Attorney General’s Office shall take proper measures to ensure that a meeting between the arrested individual and a representative of the International Red Cross Committee occurs.

Chapter 2 Extradition

Article Fifteen

Notice in emergency situations

(1) In an emergency situation, notice of extradition that is directly sent to MOFA via electronic means may be accepted. In that case, until a formal request of extradition and its attachments are received, [Afghanistan may] arrest the individual per order of a competent court issued pursuant to Article 10 of this law, and as a precautionary measure, take him into custody and then notify the requesting country of the matter. The [Afghan] Ministry of Foreign Affairs, in a similar situation, can also send notice of extradition to a foreign country in the same manner.

(2) A prosecutor [then] conducts the required investigations after arrest of the individual and
takes proper precautionary measures when necessary.

(3) If[a formal] request for extradition and its attachments are not received [from the requesting country] within 30 days, the individual shall be released.

Chapter 2 Extradition

Article Sixteen

Taking temporary precautionary measures

(1) When a foreign country requests [that Afghanistan] take temporary precautionary measures regarding an individual, the High Council of the Supreme Court takes proper actions as per laws of the land.

(2) If the request of a foreign country to take temporary precautionary measures contradicts the laws of Afghanistan, the Attorney General’s Office is not required to implement [the request]. Instead, it shall take proper measures abiding by the laws of Afghanistan.

Chapter 2 Extradition

Article Seventeen

Requesting additional information

(1) When information in a request from a foreign country is not sufficient for Afghan judicial authorities to make a decision, the Attorney General’s Office or the High Council of the Supreme Court can ask the requesting country for further details/explanations.

(2) The Ministry of Foreign Affairs sends the decision of the Afghan judicial authorities within 14 days [of the date of the decision] to the requesting country [with instructions to] provide the [additional] details/explanations. If the individual is in custody, the time to respond after receiving the request cannot be more than 30 days. If a formal response is not received in thirty days, the arrested individual will be released.

(3) When details and reasons are provided after release of the individual, the issue shall be addressed again as per provisions of this law.

Chapter 2 Extradition

Article Eighteen

Reviewing the request and decision making

If the Attorney General’s Office believes that the request for extradition contains sufficient information, [and] after conducting [its own] investigation, it will send the request and its attachments, together with an acceptance or rejection recommendation letter, to the Supreme Court to make a decision. The High Council of the Supreme Court will then address the issue and will make a decision in the presence of the accused or his defense lawyer, and a representative of the Attorney General’s Office.

Chapter 2 Extradition

Article Nineteen

Simultaneous request for extradition

(1) If more than one country sends a request for extradition of an accused for committing identical crimes, the request of the country whose interest or citizens were first affected shall prevail.

(2) If more than one country sends a request for extradition of an accused for different crimes, the request of the country whose interest or citizens were more severely affected shall prevail.

Chapter 2 Extradition

Article Twenty

Handing over the individual [in request]

If the High Council of the Supreme Court decides to extradite an individual, the handover shall occur in presence of a delegation consisting of representatives from the Ministry of Justice, the Ministry of Foreign Affairs, the Ministry of Interior Affairs and the Attorney General’s Office. The individual shall be handed over to the diplomatic mission of the requesting country; if there is not any diplomatic mission of that country in Afghanistan, the individual shall be handed over to a diplomatic mission determined by the requesting country.

Extradition of a convict for the purpose of enforcement of the punishment will occur based on the decision of the Minister of Justice, and the mechanism to hand him over is subject to this [same] provision.

Article Twenty One

Returning the money and assets

(1) If an accused is handed over to a foreign country, the money and assets [which were] derived from commission of crime(s) inside Afghanistan will also be given to the same country, as per provisions of this and other laws complying with rights of third person(s).

(2) If the extradition of an accused to a foreign country does not take place despite an effective agreement or convention, the proceeds of the crime [related to the extradition request] shall still be ceded to the requesting country.

(3) Money and assets that are inside Afghan territory, and are therefore subject to seizure/confiscation, may be temporarily held by the Afghan government or may be delivered to the country to which the accused is extradited.

(4) When the laws of land or rights of a third person require that money and assets [seized pursuant to this law] be returned to the Afghan government, the foreign country shall, after [a formal] request from the Afghan government and completed the criminal proceedings, return the money and assets bearing all expenses of the delivery.

Chapter 2 Extradition

Article Twenty Three:

Postponing the Extradition

If a foreign country is requesting the extradition of an accused that is being investigated or tried for commission of another crime, the extradition will be delayed until the final decision of the court is heard unless the High Council of the Supreme Court agrees on an immediate extradition or the issue is stipulated differently in the treaty.

Chapter 2 Extradition

Article Twenty Four:

Optional Rejection of the Extradition

(1) The High Council of the Supreme Court can reject the extradition request of an accused for the following reasons: a. If the crime is under prosecution in Afghanistan and the criminal procedure has begun but not concluded against the accused.

b. Considering the nature of the crime and interests of the Afghan Government, extradition is contradicted from the view point of the accused’s old age, health conditions, or other humanitarian issues.

c. If the crime listed in the request for extradition of the accused is completely or partly committed in the territory of Afghanistan and the act is considered a crime under Afghan law.

(2) If the person whose extradition is requested has been or is being tried in a special court, the request can be rejected by the High Council of the Supreme Court.

Chapter 2 Extradition

Article Twenty Five

Rejection of Extradition Request

(1) The High Council of the Supreme Court may not issue an order of extradition when:

a. There are enough reasons [to believe that] the request for extradition is to prosecute and punish for causes such as ethnicity, religion, nationality, tribe, political belief or social status, or the purpose of the request is to harm the reputation of the accused.

b. An Afghan court [has already] issued a final verdict on the crime which forms the basis for the extradition request.

c. The prosecution and implementation of the punishment is pardoned due to the expiration of a statute of limitation or a general pardon based on either Afghan or the requesting country’s laws.

d. The act is committed outside the territories of Afghanistan and the requesting country, and [the act]is not prescribed as a crime under Afghan Laws.

e. The accused or convict faces torture, severe or inhuman or degrading punishment in the requesting country, or is [deprived of] a guarantee [to ensure] fair criminal procedures outlined in the [Afghan] Constitution, other enforced legislative documents, UN Convention on Civil and Political Rights and other international agreements to which Afghanistan is a party.

f. The requesting country has issued a verdict in absentia, or the convict was not notified of the trial, or [he was not given an opportunity to prepare] his defense, or [he was not given] the chance to appeal.

(2) The High Council of the Supreme Court will reject the extradition request based on paragraph (1) of this article,[or]Article 24 of this law, and will send the case to the relevant authorities for prosecution.

(3) If the Ministry of Foreign Affairs rejects the request for extradition, it shall notify the requesting authority within 14 days by sending a copy of the rejection.

Chapter 2 Extradition

Article Twenty Five

Rejection of Extradition Request

(1) The High Council of the Supreme Court may not issue an order of extradition when:

d. The act is committed outside the territories of Afghanistan and the requesting country, and [the act]is not prescribed as a crime under Afghan Laws.