Summary of the report ‘The Situation of Torture in Detention Centers in Afghanistan’

Freedom from torture, cruel, inhuman or degrading treatment or punishment are among the inalienable rights of humans. International human rights instruments have recognized this right and emphasized its unconditional observance and compliance. Likewise, this right is guaranteed by the domestic laws of many countries, including the Afghan Constitution, which emphasizes the need for observance of international human rights instruments,[1] including the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Convention of Civil and Political rights prohibiting the use of torture and ill-treatment and thereby guaranteeing the right to freedom from torture without any restrictions.

In 1396, the government of the Afghanistan has made good progress in the field of legislation and fighting torture. The Law on the Prohibition of Torture and the Penal Code define torture in accordance with the International Convention on the Elimination of Torture and has considered the acts of torture as a criminal offense and determined punishment for its perpetrators. The abolition of the right to reservation, Optional Protocol to the Convention on the Prohibition of Torture was ratified and approved. In addition, under the Law on the Prohibition of Torture, the commission on the Prohibition of Torture chaired by the AIHRC was established. The commission, along with the AIHRC, is one of the special mechanisms that can monitor and investigate torture with strong legal authority.

Approval of The Law on the Prohibition of Torture                                                                                      

The law on the prohibition of torture was approved on 14/12/1395 by Decree No. 246 of the President of the Islamic Republic of Afghanistan. This law is one of the best achievements of the Afghan government towards the elimination of torture that reflects the will of the Afghan government to implement international human rights obligations. The law defines torture in accordance with the International Convention Against Torture and explicitly prohibits torture of persons. According to the law torture is a crime and the perpetrators are to be punished. According to this law, perpetrators of torture can be sentenced to imprisonment and compensation.

Approving the Penal Code

Fortunately, the Afghan Penal Code has recently been enforced. This Penal Code prohibits torture entirely and deems torture as a crime. One of the features of the Penal Code is that torture is comprehensively defined. While there was no comprehensive definition of torture in the previous criminal law. Comprehensive definition of torture and the determination of penalties for the perpetrators of torture in more detail, including the aggravated cases of this crime can be one of the improvements made by the Afghan government in combating torture.

Ratifying of the Convention on the Prohibition of Torture and its Optional Protocol and the lifting of reservation

A few years ago, the AIHRC officially requested the Government of Islamic Republic of Afghanistan to accede to the Optional Protocol to the Convention on the Prohibition of Torture, as well as lift its reservation concerning the Convention on the Prohibition of Torture. The AIHRC made advocacy to the Ministry of Foreign Affairs, the Ministry of Justice and the Office of the President on this regard, and urged them to take practical steps to accede to the Optional Protocol and to lift its reservations.

Fortunately, this request was answered positively by the Afghan government. The President of the Islamic Republic of Afghanistan ratified the Convention on the Prohibition of Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment, and the Optional Protocol to the Convention against Torture. The United Nations also signed the Afghanistan Accession Treaty on April 18, 2018, based on which the Optional Protocol to the UN Convention on the Elimination of Torture has been enforced since May 17, 2018, and is currently enforceable.

Formation of the Commission on the Prohibition of Torture

The Commission on the Prohibition of Torture was established under the Chairmanship of the Chairperson of the AIHRC based on the provision of Article 11 of the Law on the Prohibition of Torture on Monday, Hamal 28, 1396, and its existence was announced with the conduction of its first meeting. The Commission was established based on the provision of Article 11 of the Law on the Prohibition of Torture in order to prevent torture and to follow up its cases. The law prohibits torture for the purpose of observing and protecting human dignity, ensuring the rights of suspects, accused and the convicts, preventing the use of torture and protecting victims and witnesses, prosecuting the perpetrators of the crime of torture and providing compensation to the victims, based on Legislative Decree No. 246 of the President of the Republic of Afghanistan dated 14/12/1395.

Although progress has been made in the area of legislation to prevent torture, but there has still not been a significant achievement in reducing torture cases. Some of the suspects and defendants are still being tortured in some of the detention facilities, especially in detention centers and in places of custody of the ANP and NDS.

Although the number of cases of torture has declined in recent years compared with previous years, some suspects and defendants are still being tortured during the arrest or during the interrogation in some detention facilities. The suspects and defendants are tortured for eliciting confessions and information or for punishment. The suspect and the accused persons are being tortured and battered during the arrest. Torture and battery take place during the arrest due to the suspect's and defendant's resistance, and sometimes for punishment or taking revenge.

Based on the assessment and information obtained by the AIHRC, through conduction of numerous monitoring and interviews with 621 suspected and accused persons at detention centers in 1396, 79 cases of torture were recorded in these offices. The comparison of the statistics of torture in 1396 with that in 1395 indicates a fall of more than 22%. In 1395, 102 cases of torture were registered at the regional and provincial offices of the AIHRC.

It must be said that cases of torture have been fluctuating in recent years, some years the figures have been rising, but in other years it has been declining.  In 1391, 73 cases, in 1392, 74 cases, in 1393, 305 cases, in 1394, 93 cases and in 1395, 102 cases and in 1396, 79 cases of torture were registered in the AIHRC’s Offices.

In 1396, the police committed the highest number of torture. Of 79 cases of torture, registered in 1396, 62 cases were perpetrated by the Police. Other 13 cases were perpetrated by NDS, and 4 cases of torture by ANA soldiers.

AIHRC while appreciating the significant achievements of the Government of Afghanistan in the area of torture, expresses its concern regarding the existence of torture in the detention centers, and presents the following recommendations to the Afghan government, in particular the defense, security and justice organs:

  1. The AIHRC suggests to the Ministry of the Interior and NDS that those officials of the departments who have been charged with or suspected of torture should not be appointed in important security positions.
  2. The AIHRC requests the Ministry of Interior and the NDS to provide effective monitoring ground for the AIHRC’s monitors, so that they can individually interview individuals under the custody or detention.
  3. The AIHRC requests defense and security organs to train prohibition of torture to all its staff, especially those dealing with suspects and defendants.
  4. The AIHRC requests justice and judicial authorities to seriously prosecute torture cases in accordance with applicable laws and punish their perpetrators.
  5. The AIHRC requests the Attorney General's Office to carefully investigate and prosecute torture cases and prosecute the perpetrators.
  6. The AIHRC requests the Ministry of Justice to implement United Nations recommendations on the prohibition of torture and to prepare and adopt a clear and enforceable action plan for the effective implementation of those recommendationsبه
  7.  AIHRC suggests to the National Directorate of Security (NDS) that, in accordance with the laws of the country, pave the ground for the lawyers to have access to their clients within legal time


[1] . Government of the Islamic Republic of Afghanistan, Constitution, 1382, Article 7, publication of AIHRC.

 


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