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Special Report
Sunday, 4 June 2023
Justice Denied: An Examination of the Legal and Judicial System in
Taliban-Controlled Afghanistan

TABLE OF CONTENTS



 1. Introduction
 2. Methodology
 3. Conclusion and  Recommendations


INTRODUCTION

This report presents a detailed examination of the challenges of access to
justice and the human rights violations prevailing in Afghanistan’s judicial
system under Taliban rule. It offers a comprehensive analysis of the widespread
violations of fair trial standards within the Taliban’s legal and judicial
institutions. Of particular concern is the significant obstacles faced by women
and religious minorities in accessing justice. The report also highlights the
changes in legal institutions impacting their independence and the lack of
established legal frameworks to regulate judicial proceedings, which further
compound the gravity of the situation.

The findings underscore the urgent need for substantial improvements in
Afghanistan’s legal and judicial institutions to uphold human rights and ensure
equitable access to justice for all Afghan citizens.

Following the Taliban’s resurgence in August 2021, Afghanistan’s judicial system
collapsed. The Taliban dismantled existing laws and replaced professional
personnel with their preferred candidates, primarily religious school graduates.
This abrupt removal of past laws, particularly those governing judicial
proceedings, has created a void in effective legal criteria and mechanisms to
regulate the competence and powers of legal and judicial institutions. Coupled
with removal of professional legal and judicial cadre, these changes have
resulted in widespread disorder and chaos, characterized by violations of fair
trial principles and rampant human rights abuses. The Taliban’s attempt to
establish their own court system through documents such as the “Administrative
Principles of Courts,”(Usul-nama e Edari e Mahakim)  “‌‌Bill of Courts,” (Layha
e Mahakim)  and “The Law on Acquisition of Rights” (Qanoon e Tarz e Tahsil e
Huqooq) has proven insufficient in addressing the existing challenges and
effectively regulating judicial affairs.

Furthermore, the Taliban appointed judges, primarily students or graduates of
religious schools, lack familiarity with judicial knowledge and fair trial
standards. In this context, torture has become the most common method utilized
for crime verification, leading to coerced confessions from the accused.

Rawadari’s investigation has exposed widespread violations of fair trial
standards within the Taliban’s legal and judicial institutions. Women and
religious minorities face significant obstacles in accessing justice, as they
bear the brunt of these violations. The Taliban-controlled courts and judges
employ inconsistent procedures when handling criminal and legal cases, resulting
in a lack of coherence in legal proceedings. Additionally, women, particularly
women victims of violence, have experienced increased challenges and stricter
restrictions in accessing justice, owing to the discriminatory behavior
exhibited by the courts.

The legal and judicial landscape under the Taliban is rife with significant
challenges and serious violations, such as mistreatment of women and
marginalized groups, torture, arbitrary and illegal detentions, widespread
corruption, the presence of Illegal and secret prisons prisons, and the improper
handling of criminal cases by non-judicial entities. Moreover, the lack of
independence and impartiality within the courts intensifies these issues,
leading to further obstacles in accessing justice.

This report is divided into three sections, each offering insights into the
state of Afghanistan’s legal and judicial system under Taliban rule.

In the first section, we delve into the organizational structure and hierarchy
of Taliban courts, shedding light on how they have been established and
function. This section provides a comprehensive overview of the various levels
of courts, their jurisdiction, and their roles within the judicial framework.

Moving to the second section, we explore the profound impact of the Taliban’s
takeover on the legal and judicial system in Afghanistan. Here, we examine the
dismantling of the previous legal framework, the dismissal of professional
personnel, and the dissolution of specialized courts and prosecution offices.
This section paints a vivid picture of the far-reaching consequences of the
Taliban’s actions on the system that was once in place.

In the third section, we analyse the violations of fair trial principles within
the Taliban’s legal and judicial institutions and the subsequent repercussions
on the accessibility of justice. By closely examining these violations, we
highlight the challenges faced by vulnerable groups, particularly women and
religious minorities, in accessing a fair and equitable legal system.

The report culminates with a set of recommendations aimed at the de-facto
authorities, the international community, and other relevant stakeholders. These
recommendations address the pressing need for reforms and improvements within
the legal and judicial system, with the ultimate goal of safeguarding human
rights and improving access to justice for all Afghans, women, and men, in all
parts of Afghanistan.


METHODOLOGY

This report aims to provide an accurate and comprehensive assessment of the
performance of the Taliban’s judicial system and the state of access to justice
for Afghan citizens. Gathering reliable information under the Taliban regime has
presented significant challenges due to the surveillance by de-facto authorities
and security risks to interviewees, but we have employed a robust methodology to
ensure the validity of our findings. This report presents comprehensive data and
information regarding the changes in the judicial and legal framework in
Afghanistan from August 15, 2021, to June 2023. To prepare this report, Rawadari
conducted 141 interviews with a wide range of individuals, including defense
lawyers, current and former employees of the legal and judicial institutions,
human rights defenders, survivors, and local reporters and journalists across 26
provinces (Kabul, Maidan Wardak, Ghazni, Herat, Farah, Badghis, Nimruz, Ghor,
Kandahar, Helmand, Zabul, Uruzgan, Daikundi, Bamiyan, Panjshir, Paktia, Paktika,
Khost, Kunar, Ningarhar, Balkh, Baghlan, Faryab, Jawzjan, Badakhshan and Kunduz)
of Afghanistan. These interviews were conducted in the period of January- May of
2023. The obtained information was meticulously analysed, compared, and
evaluated to ensure utmost accuracy and reliability.

To complement the primary sources, we have referred to the documents released by
the de-facto authorities and related to the functioning of the legal and
judicial institutions including Usul-namas and bills as prepared by the “High
Office of Courts “ (Edara e Aali e Mahakim). Additionally, international human
rights documents and previous Rawadari reports on human rights violations in
Afghanistan have informed the analysis of this report.

We faced significant challenges in collecting and verifying information due to
security threats and the restrictive environment surrounding the operations of
legal and judicial institutions. Lack of direct access to places of detention
and detainees further hindered our data collection efforts.  To ensure the
safety and security of the interviewees and sources, we have chosen not to
disclose specific details about their identities. In certain cases, to protect
the security of victims and witnesses, we have withheld exact dates and
locations of incidents of human rights violations.


CONCLUSION AND  RECOMMENDATIONS

In conclusion, the findings of this report paint a concerning picture of the
judicial system under Taliban rule in Afghanistan. The absence of clear laws and
regulations, coupled with a lack of institutional and individual independence,
has created significant barriers to justice. Interference from non-relevant
entities, the prevalence of torture and mistreatment of detainees, arbitrary and
unlawful detentions, and the disregard for fair trial standards have all
contributed to a loss of trust in the Taliban’s judicial institutions among the
Afghan population. This erosion of trust has pushed individuals to seek
alternative, informal avenues for resolving disputes. This has particularly
impacted women, specifically women victims of domestic violence who are left
with no legal remedy and protection.

Almost two years into the Taliban’s governance, the absence of enacted
legislation to regulate government institutions and protect citizens’ rights has
resulted in widespread disorder and a steady erosion of basic freedoms. The lack
of legal frameworks allows for arbitrary actions by Taliban members, undermining
the rule of law and perpetuating a climate of fear and insecurity for citizens.

The existence and utilization of secret and illegal prisons and lack of regular
monitoring of detention facilities under Taliban control raises serious concerns
about the treatment and well-being of detainees. This lack of regular oversight
further compounds the human rights challenges faced by detainees.

The absence of an effective and accountable mechanism to monitor the performance
of legal and judicial institutions has fostered corruption and the violation of
citizens’ rights. The lack of checks and balances allows for unchecked abuses
within the system.

Addressing these issues requires collective action. The international community
must hold the Taliban accountable for their actions, urging them to respect
human rights principles and implement necessary reforms. Efforts should be made
to pressure the Taliban to enact legislation that safeguards citizens’ rights
and promotes access to justice. The United Nations should conduct comprehensive
investigations into secret and illegal prisons, cases of torture, and detention
conditions to shed light on these human rights violations.

You can click here to read the full report.


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TABLE OF CONTENTS

 1. Introduction
 2. Methodology
 3. Conclusion and  Recommendations

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