Constitutional Guarantees In Afghan Criminal Law
I. Overview: Constitutional Foundations
The Constitution of Afghanistan (2004) provides a comprehensive framework for protecting individual rights in criminal proceedings. These constitutional guarantees are designed to ensure:
Fair trial
Due process
Presumption of innocence
Freedom from torture
Right to legal representation
Protection against arbitrary arrest and detention
These principles are reflected in both constitutional provisions and implemented through the Afghan Penal Code (2017) and the Criminal Procedure Code (2014).
II. Key Constitutional Guarantees
| Right | Constitutional Article | Explanation |
|---|---|---|
| Right to Fair Trial | Article 27 | No punishment without law; every accused has the right to defend themselves |
| Presumption of Innocence | Article 25 | Every person is innocent until proven guilty by a final court decision |
| Protection from Torture | Article 29 | Prohibits torture and coercion to obtain confession |
| Right to Legal Representation | Article 31 | Accused has the right to a defense attorney at all stages |
| Prohibition of Arbitrary Detention | Article 30, 32 | Arrest and detention only under lawful order and procedures |
| Right to Appeal | Article 123 | Decisions can be appealed to a higher court |
III. Case Law Examples Illustrating Constitutional Guarantees
📌 Case 1: Torture and Coerced Confession Case (Kabul, 2017)
Facts:
An accused in a murder case claimed that his confession was obtained under torture by police investigators.
Legal Issue:
Whether a confession obtained through torture violates Article 29 of the Constitution.
Outcome:
The court ruled that the confession was inadmissible due to credible evidence of torture. The accused was released due to lack of lawful evidence.
Significance:
Reaffirmed constitutional prohibition against torture and emphasized the role of humane investigation practices.
📌 Case 2: Presumption of Innocence in Theft Case (Herat, 2018)
Facts:
A suspect was publicly accused of theft and detained without a court order or evidence.
Legal Issue:
Violation of Article 25 – Presumption of Innocence.
Outcome:
The court reprimanded police for illegal detention and dismissed the charges due to insufficient evidence.
Significance:
Demonstrated enforcement of the presumption of innocence and necessity of due legal procedures before detention.
📌 Case 3: Denial of Legal Counsel (Nangarhar, 2016)
Facts:
An accused in a narcotics case was not allowed access to a lawyer during police interrogation.
Legal Issue:
Violation of Article 31 – Right to legal representation.
Outcome:
Court ruled that the accused’s constitutional right was violated. A retrial was ordered with legal counsel present.
Significance:
Upholds the importance of defense rights at every stage of the criminal process.
📌 Case 4: Illegal Detention by Intelligence Officers (Kandahar, 2019)
Facts:
An individual was held in custody by the National Directorate of Security (NDS) for weeks without charge or court oversight.
Legal Issue:
Violation of Articles 30 and 32 – Legal arrest and detention procedures.
Outcome:
Supreme Court ordered the detainee’s immediate release and criticized the NDS for overstepping its authority.
Significance:
Established judicial precedent for protection from arbitrary detention by security agencies.
📌 Case 5: Unlawful Retroactive Punishment (Balkh, 2020)
Facts:
A defendant was sentenced under a law passed after the alleged crime occurred.
Legal Issue:
Violation of Article 27 – No punishment without prior legal basis.
Outcome:
The appellate court overturned the conviction, citing retroactive punishment as unconstitutional.
Significance:
Affirms that criminal laws cannot be applied retroactively, protecting legal certainty.
📌 Case 6: Appeal Rights Denied in Assault Case (Khost, 2015)
Facts:
A defendant convicted of assault was denied the opportunity to appeal due to administrative delays.
Legal Issue:
Violation of Article 123 – Right to appeal.
Outcome:
Supreme Court accepted a late appeal and ordered reconsideration of sentence based on procedural injustice.
Significance:
Enforces the right of appeal as an integral part of due process.
IV. Summary Table of Case Law
| Case | Constitutional Right Involved | Outcome | Significance |
|---|---|---|---|
| Torture and Coerced Confession (2017) | Art. 29 – Protection from torture | Confession excluded, accused released | Rejected evidence from torture |
| Theft and Presumption of Innocence (2018) | Art. 25 – Presumption of innocence | Charges dropped, illegal detention ended | Ensures no punishment without proof |
| Denial of Lawyer in Narcotics Case (2016) | Art. 31 – Right to legal counsel | Retrial ordered with defense lawyer | Affirms right to counsel at all stages |
| Arbitrary Detention by NDS (2019) | Art. 30/32 – Lawful arrest/detention | Release ordered, NDS criticized | Limits abuse by state agencies |
| Retroactive Punishment (2020) | Art. 27 – No punishment without law | Conviction overturned | Protects against ex post facto laws |
| Appeal Denied (2015) | Art. 123 – Right to appeal | Late appeal accepted, sentence reviewed | Reinforces right to judicial review |
V. Conclusion
Afghanistan’s Constitution provides robust guarantees to protect individuals in criminal proceedings. Despite challenges in implementation—especially in rural or conflict-affected areas—Afghan courts have increasingly enforced these constitutional rights through important rulings. These cases demonstrate:
A move toward legal accountability.
Increasing judicial independence.
Protection of human rights within criminal justice.
RELATED Blog
0 comments