Refusal to Provide Testimony and Testimony That Will not be Heard
Article 26:

The following persons may refuse to testify:

A person whose legal responsibility as stipulated in existing laws may be violated by revealing secrets through the provision of testimony, such as a legal advisor,physician, psychiatrist, experts and similar professional functions.



Ancestors and descendants of the accused up to two levels and husband and wife even if the matrimonial relationship has ended. A relative who has been victimized as a result of the crime in question and/or is a complainant or informant regarding the crime is exempted from this provision.



Judicial officers,prosecutors and the courts are required to inform any person stipulated in paragraph 1 of this article of their right to refuse to testify.



When the court determines that the testimony of the persons included under Paragraph 1, Section 1 of this Article is necessary for the proper consideration of a case, to determine the guilt or innocence of the accused, or if the public interest is deemed to be of higher importance than the responsibility to maintain confidentiality, then the court may order to hear the testimony of the witness in a private setting, and, if necessary, without the presence of either party.



The testimony of the following persons is not admissible:

A defense lawyer who is defending the accused in the case.



A person who is considered an accomplice to the crime and his testimony includes denial of the accusation against himself.



A person who lacks the legal competency [Ahliyat] to testify.

Chapter 5 Testimony

Summons of Witnesses, Hearing and Recording Testimony

Article 25:

The person who has information concerning the crime, characteristics of the suspect or accused person and other situations relevant to the criminal case, shall be summoned as a witness.

The judicial police officer, prosecutor and court shall record the testimony or statements of the witness given by his/her consent, provided that the statements and testimony are relevant to the case.

Chapter 5 Testimony

Right to Refuse to Answer Questions

Article 27:

The witness is not obligated to answer any questions that could lead to their or one of their relative’s prosecutions. The judicial officer, prosecutor and/or the court shall inform the witness of this right.

If the testimony could lead to contempt of the witness or present harm to the witness or their relatives, they have the right to demand the court to testify in secret.

Chapter 5 Testimony

Summons of the Witnesses
Article 28:

In compliance with the provisions set forth in this law (Chapter4, Section2), the prosecutor’s office and court shall subpoena those witnesses whose statements are necessary for the investigation and court proceedings.

If the subpoenaed witness does not appear for a judicial session and cannot justify his/her absence, or leaves the place where he/she would be questioned without permission or justifying reason, he/she shall be sentenced to a fine by the court of not more than 2,000 Afghanis if he/she was to testify on a petty crime (obscenity) violation, 5,000 Afghanis if he/she was to testify on a misdemeanor or 10,000 Afghanis if he/she was to testify on a felony.

If a witness appears before the court and justifies his/her earlier absence or reason for leaving the place of questioning without permission, the witness shall be excused from paying the fine.

Chapter 5 Testimony

Contents of the Subpoena Letter
Article 29:

(1) The witness subpoena letter must contain the following information:

1– Complete identity of the witness including first name and last name, place of birth, residential area, place of work and his/her physical appearancedescription.

2– Place, date and time where the witness is to testify.

3– The criminal case for which the witness has been subpoenaed to testify.

4– That he is summoned as witness.

5– Explanation of the consequences for failure to appear.

(2) Witnesses under the age of 18 years will be subpoenaed through their parents or legal representatives for witness statements and legal testimony. An exception can be requested under emergency and impossible situations.

Chapter 5 Testimony

Expenses for Witness Appearance

Article 30:

Expenses incurred by witnesses subpoenaed to appear shall be verified and paid by the authority that issued the subpoena.

Chapter 5 Testimony

Obligations of the Witness

Article 31:

The witness shall have the testimonial eligibility based on Islamic Sharia Provisions.

The witness is obligated to tell the truth. If the witness fails to tell the truth entirely or partially or gives false testimony, he/she shall be legally prosecuted in accordance with provisions of law.

Chapter 5 Testimony

Preparation of the Testimony Registry

Article 32:

The prosecutor’s office and court are obligated to inform the witness that they must tell the truth.

After which the witness shall be requested to state his/her first name, last name and father’s name, name of relatives, residential area and work place, place of birth, age and relationship to the victim and convict.

Chapter 5 Testimony

Testimony Hearing Place

Article 33:

(1) The witness shall give his/her statement about the incident based on whatever he/she comprehended or has information about before the prosecutor or court.

(2) If the witness cannot appear due to sickness, old age or any other justifying excuse, the prosecutor or judge shall hear and record his/her statement or testimony in his/her residence or other appropriate place.

Chapter 5 Testimony

Separate Hearing of Testimony

Article 34:

If there is more than one witness available in a case, statements and testimonies of each witness shall be heard and recorded separately and individually without the presence of other witnesses.

Chapter 5 Testimony

Forbiddance of Leading the Witness

Article 35

(1) The witness shall be requested to state all the matters concerning the case in their own words.

(2) Once the witness gives the information, the accused persons or their legal representatives, the prosecutor, and the members of judicial team can question the witness.

(3) The prosecutor, judicial delegation and litigants cannot ask leading or dictating questions during the questioning of the witness.

(4) The litigants or their legal representatives shall state their remarks after the witnesses’ statements are heard.

Chapter 5 Testimony

Method of Questioning Witnesses

Article 36:

The witness’s status in the community, age, minority, gender and psychological situation will be taken into consideration during questioning.

The prosecutor, defense attorney and court shall not interfere in the personal matters of the witness during questioning, unless it is necessary for collecting reasons and evidence.

Questioning the witness must not cause a psychological inconvenience to him/her.

Chapter 5 Testimony

Preparing Report of Testimonies and Statements

Article 37:

(1) Witness statements and testimony shall be put in the report without changes, additions, distortions, correction, cleaning, and scratching. The statement and/or testimony will not be valid until confirmed by the witness, prosecutor’s office or the court.

(2) The witness shall sign or put his/her fingerprint on the statements when the entire statement is read to him/her and is confirmed.

(3) If the witness refuses or is not available to sign or put his/her fingerprint in the registry a reason shall be entered in the registry.

(4) The statements and testimony shall be written by the witness. If the witness is illiterate, his/her statement and testimony shall be written by another person and put in the registry.

(5) The registry, which is prepared in accordance with the provisions of this chapter, shall be signed and stamped by the relevant authority.

Chapter 5 Testimony

Recording the Testimony Registry

Article 38:

The following issues shall be recorded in the witness statement or testimony registry:

1– Information set forth in subparagraphs 1, 2, and 3[of paragraph (1)] of Article29 of this law.

2– Relationship or lack of relationship between the witness and accused person according to this law.

3– Awareness of the right to refuse questioning in the situations set forth in paragraph (1) of article 26 of this law.

4– Questions and subsequent answers presented.

5– Remarks of the individuals involved in the criminal case.

Chapter 5 Testimony

Testimony of a Minor

Article 39:

(1) Testimony of a child younger than 14 years of age who is able to recognize the situation and incidents shall be heard for information gaining purposes only without taking an oath.

(2) A child described in paragraph (1) of this article shall be questioned as a witness by the prosecutor and judge only in the presence of his/her parents or legal representative.

(3) The litigants may ask the prosecutor or the presiding judge to let them question the witness in relation to the case providing that the questions will not harm the psychological status of the witness.

Chapter 5 Testimony

Testimony of a Person with a Mental Disorder

Article 40:

If there is a question in the psychological and mental status, or thinking ability, of a witness, the prosecutor and court shall hear the witness testimony in the presence of the witness’s physician or psychiatrist.

Chapter 5 Testimony

Hearing Testimony Out of the Court

Article 41:

(1) If based on justifying reasons, the witness cannot attend the respective place to testify, prosecutor and the court shall inform the litigants of the issue and his/her testimony shall be heard by the a member of respective judicial team member in the witness’s residence area. All parties have the right to participate in the testimony hearing of the witness set forth in clause of this article.

(2) Registered testimony shall be narrated during trial.

(3) If the witness set forth in paragraph (1) of this article is located out of the respective court jurisdiction in which the case is being proceeded, the competent court shall officially request the local court to hear the witness’s testimony and send the registry to the competent court.

Chapter 5 Testimony

False Testimony:

Article 42:

If for reasons set forth in article 41, the witness’s excuse or reason for absence is proven to be not true, the court can require the witness to compensate the court for all expenses incurred.

Chapter 5 Testimony

Oath or Promise

Article 43:

The witness is obligated to take an oath to Allah prior to providing testimony that he/she will state the truth and nothing but the truth. Non-Muslim persons shall take an oath based on his/her beliefs.