Chapter Two : Fundamental Rights and Duties of Citizens
Article Twenty-Four
Liberty is the natural right of human beings. This right has no limits unless affecting others freedoms as well as the public interest, which shall be regulated by law. Liberty and human dignity are inviolable. The state shall respect and protect liberty as well as human dignity.
Chapter Two : Fundamental Rights and Duties of Citizens
Article Twenty-Five
Innocence is the original state. The accused shall be innocent until proven guilty by the order of an authoritative court.
Chapter Two : Fundamental Rights and Duties of Citizens
Article Twenty-Seven
No deed shall be considered a crime unless ruled by a law promulgated prior to commitment of the offense. No one shall be pursued, arrested, or detained without due process of law. No one shall be punished without the decision of an authoritative court taken in accordance with the provisions of the law, promulgated prior to commitment of the offense.
Chapter Two : Fundamental Rights and Duties of Citizens
Article Twenty-Nine
Persecution of human beings shall be forbidden. No one shall be allowed to or order torture, even for discovering the truth from another individual who is under investigation, arrest, detention or has been convicted to be punished. Punishment contrary to human dignity shall be prohibited.
Chapter Two : Fundamental Rights and Duties of Citizens
Article Thirty
A statement, confession or testimony obtained from an accused or of another individual by means of compulsion shall be invalid. Confession to a crime is a voluntary admission before an authorized court by an accused in a sound state of mind.
Chapter Two : Fundamental Rights and Duties of Citizens
Article Thirty-One
Upon arrest, or to prove truth, every individual can appoint a defense attorney. Immediately upon arrest, the accused shall have the right to be informed of the nature of the accusation, and appear before the court within the time limit specified by law. In criminal cases, the state shall appoint a defense attorney for the indigent. Confidentiality of conversations, correspondence, and communications between the accused and their attorney shall be secure from any kind of violation. The duties and powers of defense attorneys shall be regulated by law.
Chapter Seven : The Judiciary
Article One Hundred Twenty-Nine
In issuing decision, the court is obligated to state the reason for its verdict. All final decisions of the courts shall be enforced, except for capital punishment, which shall require Presidential approval.
Chapter 1 General Principles and Definitions
Article 4
Presumption of Innocence and Prohibition on Punishments against Human Dignity
Innocence (acquittal) is the original state. The accused shall be considered innocent as long as he is not convicted by a final verdict of a competent court.
Chapter 2
Rights of the Victim, Plaintiff, Suspect, Accused and Defendant
Presumption of Innocence
Article 5:
Presumption of innocence is the original state in which accused persons are innocent unless they are convicted by a final decision of a competent court.
The prosecutor and judge cannot interpret vagueness of the law or ambiguity of evidence against the suspect or accused person.
Chapter 2 Rights of the Victim, plaintiff, Suspect, Accused and Defendant
Rights of Suspect, Accused Person and Defendant during Different Legal Prosecution Stages
Article 7:
Suspects, accused persons, and defendants are entitled to the following rights during the legal prosecution stages:
1– Understanding the crime they are being charged with and receiving descriptions regarding the accusation and case proceedings.
2– Immunity from arbitrary arrest or detention and the right to receive compensation for any loss in accordance with the provisions of this law.
3– Immunity from insults, contempt, psychological and physical torture and any kind of inhumane behavior.
4– Informing his/her family or relatives at the time of arrest by the arresting authority.
5– To freely give statements and provide reasons.
6– To provide evidence and witnesses; to question the witnesses who have testified against him/her and to ensure the presence of and to hear the witnesses who testify in his/her favor.
7– To remain silent and refuse to make any comments.
8– To assign a defense lawyer or have a legal aid provider in accordance with the provisions of the law.
9– To give comment about seized items and evidence.
10– To have a translator.
11- Access to a copy of materials contained in the case file in the Primary or Appellate Court, statements of the witnesses and accomplices, physical and documented evidence related to the case, forensic reports, request and order on conducting secret surveillance, search warrant, and sufficient time and opportunity to prepare a defense statement unless the assigned prosecutor, due to reasons such as caution, the risk of endangering the witness, interruption in investigation process, obstruction of justice or having negative impacts on national interests, requests the court to deny the access [to such material].
12– To object to the proceedings of judicial police officer, experts, prosecutor’s office, and court.
13– The right to a hearing before the court to request a ruling on the legality of his/her detention.
14– To have free and confidential written or verbal communication with his/her legal representative in accordance with this law.
15– The right to be prosecuted without delay in accordance with the law.
16– The right to an open trial in accordance with the provisions of law.
17– The right to be present at trial.
18– Closing statements before the court.
19– The right to examine witnesses.
20– The right to object to the judge, prosecutor, defense counsel, and experts.
Chapter 2 Rights of the Victim, Plaintiff, Suspect, Accused and Defendant
Defense Rights
Article 9:
The suspect and accused person may be represented by a legal representative or pro se in any stage of the legal prosecution.
The suspect and accused person may have up to 3 defense lawyers at the same time.
A defense lawyer can defend one or several suspects or accused persons in the same case; provided that there is no conflict of interest among the suspects or accused persons.
When someone is suspected or accused of committing a crime for which the law anticipates long-term imprisonment or a term of longer imprisonment, the presence of defense attorney in the proceedings of legal prosecution is required.
Chapter 2 Rights of the Victim, Plaintiff, Suspect, Accused and Defendant
Appointment of Legal Aid Provider:
Article 10:
If the suspect or accused is indigent, or the suspect or accused person is deaf,mute, blind, or has any mental disorders, a legal aid provider shall be appointed for him/her with his/her consent.
Chapter 2 Rights of the Victim, Plaintiff, Suspect, Accused and Defendant
Appointment of Translator:
Article 11:
(1) The police, prosecutor’s office and court are required to appoint a translator if the victim, suspect or accused person does not know the language used during legal prosecution or is deaf or mute.A Government-funded translator shall be appointed for the indigents in accordance with the circumstances set forth in article 10 of this law.
(2) The translator is required to translate the assigned matters accurately and completely; in case of falsifying translations the translator shall be legally prosecuted in accordance with provisions of this law.
Chapter 4 Incriminating Reasons
Incriminating Evidence:
Article 19:
(4) The court cannot issue a decision to convict the accused person based on suspicion or if there is doubt in reasons or evidence.
Chapter 4 Incriminating Reasons
Prohibition of Taking Statements by Coercion or Enticement
Article 22:
(1) The judicial police officer, prosecutor and court themselves or through means of another person, in any case, are not allowed to force the suspect or accused to confess using misconduct, narcotics, duress, torture, hypnosis, threat, intimidation, or promising a benefit.
(2) If the statements of the suspect or accused person are taken in violation of the provision set forth in paragraph (1) of this article, they shall not be admissible.
Section 3 Trial
Chapter 7 Judicial Proceedings
Openness of Judicial Hearing
Article 213:
Judicial Trial shall be open and anyone can attend the session, unless the judge holds a closed trial in part or in general due to ethical reasons, family secrets, or preservation of public order.
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:
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.
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 3 Investigations
Article 21.
Investigation by Military Prosecutor
(b) Interrogation must be conducted in the presence of the accused’s defense counsel, and the accused has the right to remain silent.
Chapter 4 The Trial
Article 29. Abstention of the Military Judge
(a) A military judge cannot handle the case if:
1. The crime was committed against him or his relatives to third degree; or,
2. He has performed duties of the military police, military criminal investigators, military prosecutor, military defense counsel, or has given witness or functioned as an expert in the same case.
(b) When the cases indicated in paragraph (a) occur, the judge shall request the senior military judge of his basic military court to authorize him to abstain.
(c) When the cases indicated in paragraph (a) occur and the military judge in question is the senior military judge for a basic court, the senior military judge shall request the Head of the Legal Department for the General Staff to authorize him to abstain.
(d) When a senior military judge or the Head of the Legal Department for the General Staff accepts the request to abstain, the decision cannot be protested or appealed.
(e) When a senior military judge authorizes abstention, he or she shall substitute the requesting judge for the handling of the case.
(f) When the Head of the Legal Department for the General Staff authorizes abstention, he or she shall order the substitute of another military judge.
(g) Pending a decision on abstention, the military criminal procedures in that case shall be stayed.
Chapter 4 The Trial
Article 38.
Order of the Trial
(b) Trials are open to the public except when the court decides all or part of it shall be closed to the public for reasons of public order, or national security.
Chapter 4 The Trial
Article 39.
Conduct of the Trial
(a) The military prosecutor is required to participate in the trial, read out the indictment and answer questions asked by the court.
(b) The accused and his defense counsel are required to be present in the trial, and ask the witnesses and experts to provide necessary information.
(c) The military judge can, at any time, address questions to the accused and to any witness in the trial.
(d) The accused can refuse to answer the questions of the military judge consistent with his right to remain silent.
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.