Italy has played a significant role in reforming Afghanistan's justice system over the past decade. Key contributions include:
- Providing legal training to thousands of justice sector personnel through programs run by international organizations.
- Establishing the Independent National Legal Training Center to educate legal practitioners.
- Creating the first Elimination of Violence Against Women Units to protect women's rights.
- Focusing on gender justice and juvenile justice through specialized initiatives.
Group_5_US-China Trade War to understand the trade
Italy and the rebirth of the afghan justice system
1. Printed in August 2011
The contents of this publication, including any opinions
or analysis, indicate the personal assessment of the
authors and do not necessarily reflect the official views
of policies of the Directorate General for Development
Cooperation of the Italian Ministry of Foreign Affairs.
2.
3. Italy
and the Rebirth of the Rule of Law
in Afghanistan
The Italian contribution to justice reform
over the decade 2001-2011
6. Italy’s involvement in supporting the rebirth of a free and
democratic Afghan state has been demonstrated since the
early 1990s, when the royal family, in exile in Italy since 1973,
and other elements of the Afghan diaspora chose Rome as
their headquarters for promoting and encouraging the efforts
of the international community to support the country.
“Civilization always wins out over barbarism just as light
does over darkness.” With these words, His Majesty
Mohammad Zahir Shah, the last king of Afghanistan and
“Father of the Nation” from 2002 until his death, showed
the way towards re-establishing peace in Afghanistan. This
same spirit – based on the conviction that to construct a
durable peace it is first necessary to combat ignorance
and underdevelopment, both sources of violence, hate and
intolerance – has motivated and oriented since the very
beginning the Italian effort as part of the peacemaking
and reconstruction process that was undertaken by the
international community in Afghanistan in 2001 and
continues to the present day.
The Italian contribution has manifested itself in different
manners: from strengthening security in the country, the
indispensable condition for the entire peace process, to
reconstructing infrastructure and improving basic services,
such as the health sector and education, these being
absolute prerequisites for social and economic development.
The Italian involvement has further distinguished itself
by activities that are perhaps less well known – such as
preservation of national historical monuments considered
by UNESCO as World Heritage, the Minaret of Jam in Ghor
province being a notable example – and that are aimed
at preserving a sense of memory and belonging disrupted
by thirty years of uninterrupted conflict, on the part of a
population that today is preponderantly very young, with an
average age of less than 15 years.
Afghanistan has since time immemorial represented an
important crossroads between West and East, as witnessed
for example by the art of Gandhara – product of a long
6
period of contact and osmosis among Hindu, Buddhist and
Greco-Roman cultures between the 1st century BC and
the 7th century AD – and by the commercial and cultural
exchanges in the following centuries that encouraged a
fruitful rapprochement between distinct universes. This
memory represents a treasure to be preserved in the
current hostile atmosphere of factions that bring with them
intolerance and misguided efforts to impose a pseudoculture that is very distinct from the rich and highlydeveloped Islamic civilization.
The re-establishment of the rule of law in Afghanistan is
one of the essential conditions for ensuring a solid and
shared base for the restoration of harmonious relations
among the different ethnic groups that populate the
country. The ability of the State to provide essential
public services in an efficient and self-sustainable
manner depends not only on the successful social and
economic reconstruction of the country, but also on the
extent to which legal certainty in all its manifestations
is established throughout the country. Development and
security for the Afghan people cannot be achieved without
judicial institutions capable of ensuring the consolidation
of a rule of law that is based on transparent governance
of the collective resources, on respect of the rules of
living together, on the defense of human rights, and on
the satisfaction of the basic needs of the population.
Over the past decade, the Italian Government has made
a significant contribution to the reform of the Afghan
justice system, both through bilateral initiatives and via its
financing of multilateral projects whose primary objective
was the strengthening of judicial institutions. Italy has
also invested human and financial resources in training
activities for personnel of the Ministry of Justice, the
Attorney General’s Office and the Supreme Court, and for
employees in the justice sector, paying particular attention
to the defense of the rights of the most vulnerable elements
of the population, especially women and juveniles, through
free legal aid programs for the indigent.
Foreword
7. Claudio Glaentzer, Ambassador, Italian Embassy in Kabul.
Over the past few years there has been growing support
for a rapid and full “Afghanization” of the reconstruction
process. Italy has consistently supported the Afghan core
budget, to which 80 per cent of its own grant assistance
has been allocated. Italy is also one of the donor countries
to have channeled to the Afghan budget a significant part
of its own aid in support of the justice sector – to the ARTF
(Afghan Reconstruction Trust Fund), via the Justice Sector
Reform Project – reflecting its firm belief that it is the
Afghan people themselves who are the primary architects
of their own future.
Afghan leadership in which the Government has the
responsibility not only for defining sector strategies but also
for the direct control and management of the resources
required for their implementation. The Italian commitment
in Afghanistan in support of the rule of law has been a
particularly important one, both in terms of resources
employed and results achieved.
This booklet thus seeks to be an informative instrument
providing documentation on the principal interventions that
have been carried out in this sector through the interest
and support provided by our country.
The present publication grew out of an effort to retrace
the principal stages of the Italian contribution to the
strengthening of the reform process for Afghan judicial
institutions, from the initial emergency stage immediately
following the fall of the Taliban regime, to the current
“transition” stage characterized by the consolidation of
Foreword
Claudio Glaentzer
Ambassador, Italian Embassy in Kabul
7
8. Contents
Introductions
p. 10
The Italian involvement in Afghanistan
p. 10
by Alberto Bortolan, Director, Italian Development Cooperation Office in Afghanistan
The Italian contribution to justice sector reform
p. 12
by Mohammad Qaasem Hashemzai, Deputy Minister of Justice of Afghanistan
The reform of the justice system
p. 14
by Giuseppe di Gennaro, Special Adviser for the reconstruction of the Afghan justice system
Ten years of support to justice reform:
the principal results
p. 16
9. 1.
Historical phases of justice sector reform
p. 28
1.1
1.2
1.3
1.4
The lead phase (2003-2005)
The key partners phase (2006-2007)
The Afghan ownership phase (2007-2009)
The transition phase (from 2010 onwards)
p. 32
2.
Areas of intervention
p. 38
2.1
Assistance for reform of judicial rules and procedures
p. 40
2.1.1 The lead phase and the Criminal Procedure Code
p. 42
2.1.2 The key partners phase and laws promoted through the Criminal Law
Reform Working Group
p. 44
2.1.3 Laws promoted through other working groups
p. 46
2.2
p. 48
2.2.1 Legal training and assistance to judicial institutions
p. 56
2.2.2 Free legal aid for the indigent
p. 61
2.2.3 Juvenile justice
p. 66
2.2.4 Gender justice
p. 70
2.3 Assistance to judicial institutions in the field
of infrastructure
p. 72
2.3.1 Prison infrastructure
p. 80
2.3.2 Infrastructure for other judicial institutions
p. 92
3.
Prospects and challenges: what does the future hold?
p. 96
4.
Annexes
p. 102
5.
Glossary
p. 20
p. 20
p. 22
p. 24
Training of judicial sector personnel and strengthening
of judicial institutions
11. interventions carried out in a perspective of sustainability,
always with particular attention to the most disadvantaged
and neediest elements.
Supporting refugees and evacuees; distributing food aid
and basic necessities; restoring basic social services
(health, education, water); supporting small family
businesses that generate incomes; family farming;
focusing on women and children: these are some of the
elements of the emergency interventions.
A number of infrastructural interventions such as the
construction of the Maidan Shar – Bamyan road (connecting
Kabul and the interior of the country, and representing the first
section of the east-west highway between Kabul and Herat)
and the road that passes through the Mushai Valley (linking that
agricultural area with the capital); the commitment to provide
support to Esteqlal Hospital in Kabul, Baghlan Provincial
Hospital, and Herat Regional Hospital; the construction of
a number of schools in Kabul and Herat; the rehabilitation
of important irrigation systems as well as aqueducts; focus
on rural development and efforts to restore a number of
agro-industrial plants; support for micro-credits; continual
emphasis on “good governance” and on strengthening local
administrative systems in order to improve the functioning of
the country’s democratic processes and institutions; justice
sector reform (to which Italian Development Cooperation has
devoted, in financial terms, more than 15 per cent of its aid
to Afghanistan): these are some of the contributions to the
country’s development that have been supported by Italian
Development Cooperation.
Italian Development Cooperation has given particular
attention to gender issues and those relating to the special
requirements of the juvenile population. This is shown by
the important individual initiatives financed in recent years
aimed at effecting substantial changes in Afghan society
through the enhancement and recognition of the role of
women and the protection of minors, both fundamental
actors (present and future) in the development process.
Support to Afghan women has taken the form of
professional training initiatives as well as aid to female
entrepreneurs who have created independent small-scale
enterprises, which represent an authentic example of
economic emancipation and social development.
All of this has been based on the principle of Afghan
“ownership”: always avoiding the creation of parallel
systems (at the community as well as the institutional level);
encouraging the Afghan Government to take over the role of
manager and coordinator (not only in terms of policies, but
also of the direct management of financial aid provided for
the country’s development); and constantly seeking to foster
the development of local human resources, at all levels.
Introduction
Alberto Bortolan
Director, Italian Development Cooperation Office in Afghanistan
11
12. The Italian contribution to justice
sector reform
Since 2001 Afghanistan has undergone a significant period
of reconstruction and reform of all key state institutions
aimed at ensuring the effective and efficient delivery
of essential public services to the Afghan population
throughout the country. The judicial reform program has
been of crucial relevance to address this challenging
task. During the past ten years, with the support of the
international community, we have been working hard to
establish sustainable democratic institutions and to restore
and maintain trust in the rule of law.
implemented through international development legal aid
organizations. The Independent National Legal Training
Center, a unique post-graduate educational institution for
the judiciary, was also established with Italian funding and
it has been fully operative for over three years, serving as
a center of excellence for the training of legal practitioners
in Afghanistan by offering an induction stage to graduates
from Law and Sharia faculties and advanced courses for
officials of different justice institutions and organizations.
Decades of war and conflict had destroyed the formal
legal system in Afghanistan, resulting in the absence of
a coherent institutional judicial framework, lack of skilled
law practitioners and infrastructures, and limited outreach
capacity of justice institutions. Courthouses that could still
serve their original purpose were very limited, particularly
in the provinces; law libraries and archives had been
severely damaged; judges and lawyers were not trained
to effectively promote a functional legal system and the
respect for state laws and legal institutions, since, in most
cases, they themselves had inadequate law knowledge.
The contribution to the judicial reform process by the
Italian Government – lead country for the reform of the
judicial sector in the first delicate phase and a major
donor in the following years – has been significant. As
a result of the Italian support, thousands of members of
the three main institutions of the judiciary, the Ministry of
Justice, the Attorney General’s Office and the Supreme
Court, have received legal training thanks to a variety of
training programs covering key study areas that have been
12
In its commitment to the defense of human rights and
especially of women and children, Italy has been particularly
active in the gender and juvenile justice sectors. The
creation of the first Elimination of Violence Against Women
(EVAW) Unit – a department of the Attorney General’s Office
in Kabul and Herat – is considered a major step for the
protection of women’s rights in this country. The Unit is the
first of its kind in Afghanistan and it also represents the
first specialized system response aimed at fighting violence
against women. Due to the success of this initiative, the
possibility of establishing further EVAW Units in more
Afghan provinces, is being explored, at present.
Italy’s support to the development of a more inclusive,
holistic and comprehensive reform of the justice system and
to the efforts aimed at ensuring its sustainability through
the Afghan ownership of the reconstruction process was
particularly welcomed by our Government. This approach
paved the way to the beginning of a new chapter in the
partnership between the Afghan justice authorities and the
international community. Italy has been a strong supporter
of the Justice Sector Reform Project which is being funded
Introduction
13. Mohammad Qaasem Hashemzai, Deputy Minister of Justice of Afghanistan.
through the Afghanistan Reconstruction Trust Fund. As of
to date, this is the first project directly administered by
Afghan authorities through the State’s core budget which
aims at reforming the sector through a systemic and
holistic approach which is fully aligned with the Afghanistan
National Justice Sector Strategy.
The establishment of rule of law in the country and
the end of impunity in all provinces is essential to the
consolidation of all stabilization and developmental efforts
in Afghanistan. In this regard, the Afghan Government is
appreciative of the contribution of the Italian Government
in support of the justice sector.
Mohammad Qaasem Hashemzai
Deputy Minister of Justice of Afghanistan
Introduction
13
14. The reform
of the justice
system
by Giuseppe di Gennaro
Giuseppe di Gennaro, Special Adviser for the reconstruction of the Afghan justice system during the lead phase.
Italy’s interest in the construction of a modern and democratic
Afghan state was already demonstrated by its offer of
hospitality in 1973 to King Mohammad Zahir Shah, who had
been deposed by his cousin Daoud, a Soviet puppet.
Towards the end of the 1990s, in the face of systematic
violations of human rights committed by the Taliban, Italian
concern for Afghanistan was heightened, as shown by
the support it gave to Zahir’s initiative to set up meetings
between Afghan intellectuals in exile who were committed to
working out a better future for their country.
Following the turbulent events during the period from 1992
to 2001 that were marked by a series of violent and bloody
clashes between the Mujahedeen and the Taliban, the
representatives of several major countries met in Bonn, under
the auspices of the United Nations and with the participation
of the most important social elements within Afghanistan,
to develop a plan for putting Afghanistan on the path to a
democratic peace. At this meeting, four countries – United
States, Japan, United Kingdom and Germany – joined with
Italy in taking the responsibility for contributing to the growth
of democracy in Afghanistan through institution-building
activities in the key social sectors. Italy was assigned the
lead country role for the justice sector.
When in March 2003, with the agreement of the Ministers of
Foreign Affairs and Justice, I was designated to take over the
14
role of Special Adviser for the reconstruction of the Afghan
justice system with the mandate to give a strong boost to
the Italian lead role, I immediately recognized the importance
and difficulty of the task. My long judicial experience, and
in particular the numerous assignments I had carried out in
international settings, had made me fully aware of the truth
that underlies the Latin legal maxim justitia fundamentum
regni (“Justice is the foundation of the state”).
A population resident in a territory does not become a
State until an authority based on laws is established that
has jurisdiction over the entire community and territory. In
particular, this requires a set of rules to be put in place that
identifies the acts and behaviors deemed to be detrimental
to the interests of the society and its members and that, as
such, are to be prohibited; and that specifies the authorities
that are to be invested with the power to prevent and punish
such behaviors and acts.
Afghanistan, which had become a unified political entity for
the first time in 1747 under Ahmad Durrani, was subsequently
disrupted for more than a century by the incursions of the
Russians and British, and it was only in 1893, when their
“Great Game” ended, that the country became a fully unified
political state without, however, finding peace. Since then the
history of the country has been a tormented one of perennial
internal conflicts exacerbated by external meddling, more or
less overt, that brought the country to such a dramatic state
Introduction
15. of destruction and disorder.
This was the situation when the Bonn Agreement was
signed, and it is therefore easy to understand what the state
of the justice system was at that point. In a country where
past efforts to introduce a modern judicial system had been
unable to overcome tribal institutions of informal justice (the
jura and shura) in which civil and criminal disputes were
adjudicated through recourse to precepts drawn from a
poorly-understood Koranic law, there were only scarce, and
highly disordered, fragments of a formal justice system.
Accordingly, the first problem confronting Italy as lead country
was that of trying to understand the justice system and
how it actually operated in practice. This was not an easy
undertaking, in view of the fact that reliable sources were
not to be found. It was therefore decided to organize an onsite investigation employing young local students. In view
of their lack of training and experience, they first attended
an ad hoc preparatory course and were then supplied with
questionnaires to distribute in each district to individuals
who had knowledge, direct or indirect, of the justice system.
On the basis of the information collected, supplemented by
interviews conducted by experts from the Italian lead, a report
was compiled, entitled “The Afghan Judicial System under
Review”, and submitted to President Karzai. In this manner it
was possible to provide an outline, even if only a rough one,
of the actual situation on the ground; also presented were
a number of suggestions concerning possible prospects for
development. This provided the basis for setting up a concrete
and substantive dialogue with the relevant authorities.
The knowledge obtained in this manner was used to identify
the sectors of intervention, and to establish priority planning
of the stages for reconstruction of the system. From this point
forward, the Italian action was carried out in two contiguous
areas: direct action in the form of aid; and coordination of
the activities of the other lead countries and the various
international agencies involved in the justice sector.
In terms of direct action, the functioning of criminal justice
was identified as a priority, beginning with the rules of
operation for the police, public prosecutors (Saranwal), judges
and prison officers. The reasons for choosing this as a priority
are evident, if one considers that violations of human rights
are the tragic consequence of the abuse of power, and that
the best manner to prevent and eliminate such abuse lies in
the discipline of criminal procedure. The respect for the rules
of criminal procedure, which are normally contained within a
law code, is an absolute prerequisite if the liberty and dignity
of man are to be guaranteed. The quality of these rules is
the essential element on which depends the real character of
the country – whether it is democratic or despotic. Moreover,
the existence of a unitary state depends on the territorial
extension of this discipline.
Steps were therefore taken to design a criminal law code, in
continuous consultation with Afghan authorities and experts,
with the aim of producing a modern instrument guaranteeing
rights that at the same time would not represent an abrupt
break with Afghan culture and tradition. The result was the
“Interim Criminal Procedure Code for Courts” promulgated
by the State as law on 25 February 2004. This text, despite
its brevity and simplicity, contained all of the basic principles
enunciated in the United Nations conventions for the
protection of human rights in legal proceedings. The text was
designated “interim”, in order that it might immediately be
put into effect by Afghan jurists but, at the same time, allow
them to subsequently draw on their own judicial experience
for making suggestions on how the code could be improved.
It is important to stress that the Code contained a mechanism
whereby the administration of criminal justice could be
extended to the entire national territory, notwithstanding the
absence of an organized structure.
In order to facilitate the correct implementation of the
procedural rules, Italy as lead country produced an
interpretive commentary of the Code. Alongside this, Italy was
responsible for carrying out building works in order to begin
the process of renovating physical facilities and making them
operative, and it also provided professional training courses
for future workers in the justice system.
Coordination was a particularly demanding task. In addition
to a continuous dialogue with the three Afghan institutions
involved in the operation – the Ministry of Justice, the
Supreme Court, and the Attorney General’s Office – this
involved frequent working meetings with the UN agencies
interested in the sector: UNDP, UNODC, UNICEF and
UNIFEM. The fruitful cooperation obtained from the UN
agencies was greatly facilitated by the fact that the majority
of their financing came from Italian sources. While by no
means seeking to minimize their contributions, it seems only
fair to observe that the most important legislative output
attributed to them was in very large measure the product of
the Italian lead, as can readily be confirmed by examining the
legislative texts dealing with the prison system and juvenile
justice, which were clearly derived from Italian thinking and
experience, successfully grafted onto Afghan tradition.
Introduction
15
16. Ten years of support to justice reform:
the principal results
How much was allocated between 2002 and 2010?
2002
BILATERAL CONTRIBUTIONS
2002-2010
Support to the State
budget (JSRP-ARTF)*
Multilateral
projects
Total
€ 9,577,803.90
€ 10,000,000.00 € 61,614,570.23
€ 81,192,374.13
2002
€ 560,000.00
€ 8,238,506.85
€ 8,798,506.85
2003
€ 428,698.61
€ 12,500,000.00
12,928,698.61
2004
€ 1,243,791.58
€ 9,400,000.00
€ 10,643,791.58
2005
€ 1,744,510.43
€ 11,244,592.00
€ 12,989,102.43
2006
€ 1,348,020.89
€ 6,750,000.00
8,098,020.89
2007
€ 1,368,239.70
€ 10,500,000.00
€ 11,868,239.70
2008
€ 839,842.35
€ 331,471.38
€ 11,171,313.73
2009
€ 857,049.61
€ 1,150,000.00
€ 2,007,049.61
2010
€ 1,187,650.73
€ 1,500,000.00
€ 2,687,650.73
€ 10,000,000.00
* Justice Sector Reform Project - Afghanistan Reconstruction Trust Fund
For more details: Chapter 2 (pages 31 – 89)
How have multilateral contributions been allocated?
≈14%
World Bank
Support to the
State budget
(JSRP-ARTF)
≈17%
UNODC
≈7% IMG
≈1% OHCHR
≈6%
UNIFEM
≈1%
UNOPS
≈3% UN Office Vienna
≈1%
UNICEF
≈27% IDLO
≈23%
UNDP
For more details: Chapter 2 (pages 31 – 89)
What judicial rules and procedures have been reformed through Italian assistance?
Interim Criminal
Procedure
Code
Juvenile
Justice
Code
Prison
Code
Criminal
Procedure
Code
For more details: Chapter 2.1 (pages 38 - 45)
16
Summing up
17. How many people have been trained through Italian contributions?
Organization
Number trained
Kabul
Herat
Other provinces
IDLO
3366
3168
198
0
ISISC
1239
270
47
922
UNDP
1873
300
250
1323
UNODC
1693
1250
0
443
UNICEF
306
306
0
0
Universities of Perugia and
Tor Vergata (Rome)
17
17
0
0
UNIFEM
20
20
0
0
Total
8514
5331
495
2688
For more details: Chapter 2.2 (pages 46 – 69)
Where have training courses been carried out?
Training courses have been carried out in the
following provinces (numbers next to names of
provinces correspond to provinces’ numbers on
map): Baghlan (19), Badakhshan (30), Balkh (13),
Ghazni (16), Herat (1), Jowzjan (8), Kabul (22),
Kapisa (29), Kunduz (18), Laghman (32), Logar
(23), Nangarhar (33), Paktia (24), Parwan (20),
Samangan (14), Takhar (27), Wardak (21).
For more details: Chapter 2.2 (pages 46 – 69)
How much infrastructure has been built through Italian contributions?
Detention centers
Infrastructure for other judicial institutions
Constructions
Renovations
Constructions
Renovations
Kabul
3
2
1
7
Herat
0
6
4
4
Other provinces
1
5
13
19
Total
4
13
18
30
For more details: Chapter 2.3 (pages 70 – 89)
Where has infrastructure been built?
Training courses have been carried out in the
following provinces (numbers next to names of
provinces correspond to provinces’ numbers on
map): Badakhshan (30), Baghlan (19), Badghis (4),
Balkh (13), Daykundi (10), Faryab (5), Ghor (6),
Herat (1), Jowzjan (8), Kabul (22), Kunduz (18),
Nangarhar (33), Paktia (24), Parwan (20),
Samangan (14), Sari Pul (9).
For more details: Chapter 2.3 (pages 70 - 89)
Summing up
17
18.
19. 1. Historical
phases
of justice
sector reform
1.1 The lead phase (2003-2005)
1.2 The key partners phase (2006-2007)
1.3 The Afghan ownership phase (2007-2009)
1.4 The transition phase (from 2010 onwards)
21. An important step in the process of Afghan judicial sector
reform was the adoption in October 2005 of the document
Justice for All, which presented an initial medium-term
development strategy for the justice system prepared by
the Afghan Government in collaboration with the Ministry
of Justice, the Attorney General’s Office and the Supreme
Court. This document, which for the first time established
concrete objectives for the reform, timetables and requests
for financing, remained the principal reference for the
action of the international community in the sector until
the adoption following the 2006 London Conference of the
Afghanistan Compact and the Interim Afghanistan National
Development Strategy (i-ANDS).
T
he December 2001 Bonn
Conference, convened in
response to the formal invitation
contained in United Nations Security
Council Resolution 1378 of 14
November 2001, addressed the urgent
necessity to establish an Interim
Afghan Authority and identify an interim
president to lead the country, disrupted
and undermined by 23 years of war, in
the reconstruction of its institutional
framework and towards democratic
elections. At this stage the support of
the international community was seen
to be of fundamental importance, and
its intervention conceived according
to a “cluster” approach, in which the
“lead” country identified for a particular
sector was given the dominant role
in terms of both providing financial
support to the sector and serving as the
country of reference for other donors
and Afghan institutions.
The Bonn Agreement of 5 December
2001, the first in a series of agreements
on Afghan reconstruction, approved the
formation of an interim government
to manage the transition process. In
specific terms, the agreement set
22 December 2001 as the date for
the official transfer of power to the
Interim Authority consisting of “an
Interim Administration presided over
by a Chairman, a Special Independent
Commission for the Convening of the
Emergency Loya Jirga, and a Supreme
Court of Afghanistan, as well as such
other courts as may be established by
the Interim Administration.”
The 2001 agreement gave to the
Interim Authority sovereignty over the
Afghan state, the representation of
Afghanistan in its external relations,
and the right to occupy its seat at
the United Nations. It also provided
for the convening of an Emergency
Loya Jirga (Grand Council) within six
months of the establishment of the
Interim Authority, having the authority
to decide on a Transitional Authority “to
lead Afghanistan until such time as a
fully representative government can be
elected through free and fair elections
to be held no later than two years
from the date of the convening of the
Emergency Loya Jirga.” Hamid Karzai
was elected Interim President of the
Transitional Authority in June 2002 and
was confirmed in this position in the
elections of 2004.
In May 2002 the Interim Administration
established the Judicial Commission,
charged with the responsibility for
reconstructing the judicial system in
accordance with Islamic principles,
international standards, the rule
of law and Afghan legal traditions.
The Commission was subsequently
dissolved, re-established in November
2002 as the Judicial Reform
Commission, and finally abolished in
2005 in conjunction with the so-called
Bonn process.
Until the adoption of the new
Constitution, the transitional justice
system consisted of the 1964
Constitution along with the laws and
regulations approved to that point, so
long as they did not conflict with the
Constitution or with the Agreements
themselves and were in line with the
international obligations assumed by
Afghanistan. With the approval of the
new Constitution by the Loya Jirga, and
its promulgation by President Karzai on
26 January 2004, Afghanistan became
an Islamic Republic. The judicial system
was restructured, and since 2004 has
consisted of a Supreme Court, a Court
of Appeals, primary courts, an Attorney
General’s Office and a Ministry of
Justice.
1.1 Historical phases of justiceriformareform - The lead phase (2003-2005)
Fasi storiche della sector del settore giudiziario
21
22. 1.2
The key partners phase (2006-2007)
W
ith the aim of making Afghan institutions
more responsible, as part of the overall
objective of strengthening institutional
and leadership capacity of the newlyconstituted government, the 2006
London Conference handed over to the Afghan authorities
the national reconstruction effort, including the justice sector
component. The Government assumed leadership of the
overall five-year reform program, outlined in the Afghanistan
Compact, and also presented the Interim National Development
Strategy (i-ANDS). This in turn established guidelines for the
achievement of a global Afghan reconstruction strategy,
which in the case of the justice sector was based on the
document Justice for All (approved in 2005) and on the
structure established following the 2006 London Conference.
In accordance with this structure, the former lead nations
became key partners, thereby giving up their role of leading
the reform process to enter into a new partnership with the
sovereign national authorities, while continuing to provide the
technical assistance necessary for reconstruction.
Despite the establishment – by means of i-ANDS – of a
future assistance plan for justice sector reform, the gaps
remained apparent, and the reform of the sector continued to
be implemented in a disorganized mode through numerous
projects that were not always carried out in conformity with
the orientations established for the sector. The need for
better coordination among donors led to the establishment,
in the first instance, of the International Coordination Group
for Justice Reform under the joint leadership of UNAMA and
the Italian representative and, subsequently, a sub-working
group, the International Coordination for Legal Training,
both having the role of overseeing the various aid programs
22
carried out by international agencies and organizations.
Beginning with the London Conference, Italy became a key
partner and its role was correspondingly modified. This stage
coincided with the reorganization of management skills
within the national assistance program for justice sector
reform in Afghanistan. While from 2003 until 2006 on-site
management of sector activities had been carried out by an
ad hoc structure, the Italian Justice Program Office (IJPO),
from October 2006 until December 2007 the responsibilities
of the IJPO were delegated to the diplomatic representation
in Kabul. From January 2008 onwards these responsibilities
were assumed by the newly-established Local Technical Unit
of the Italian Directorate General for Development Cooperation
of the Ministry of Foreign Affairs, among whose responsibilities
was the “Justice Program” which thereby became one of the
numerous sectoral development programs and was provided
with a team of experts and a budget managed on site.
At this stage, the Italian operation in the justice sector
was characterized by technical support of legislative
reform, and support for strengthening judicial institutions
through rehabilitation and reconstruction of justice system
infrastructure (courts, prisons, etc.), training courses for
judges, prosecutors and managerial staff of the Ministry
of Justice, and the supply of materials. In cooperation
with the Afghan Government and the UN mission (United
Nations Assistance Mission in Afghanistan, UNAMA), Italy
has actively participated in the working groups provided for
in i-ANDS, and in the coordination of the other international
actors operating in the justice sector.
1.2 Historical phases of justice sector reform - The key partners phase (2006-2007)
24. 1.3
The Afghan ownership phase (2007-2009)
T
he change of strategy established at the 2006
London Conference was strengthened and
more fully articulated at the Conference on the
Rule of Law in Afghanistan, organized by Italy
and held in Rome at the Ministry of Foreign
Affairs on 2 and 3 July 2007. From a reconstruction
essentially focused on the provision of technical and
economic assistance through bilateral programs, the
approach became more inclusive and multilateral,
with the objective of ensuring Afghan ownership of the
reconstruction process. The beginning of this new stage
was favorably received by the international community and
by the numerous Afghan leaders who had come to Rome.
24
The Rome Conference, in addition to obtaining donor
commitments for an additional $360 million to support
high priority, short-term projects presented by the
judicial institutions themselves, agreed that the reform
of the justice sector and the coordinated support by
the international community should be implemented
within the framework of a Justice Sector Strategy to be
developed as part of the ANDS, and through a National
Justice Program (NJP) to include short, medium, and
long-term implementation plans.
The Conference also provided for the establishment of a
Provincial Justice Coordination Mechanism (PJCM) with
the support of the UN Assistance Mission for Afghanistan
(UNAMA), to which Italy provides financial support.
1.3 Historical phases of justice sector reform - The Afghan ownership phase (2007-2009)
27. The eight pillars of the Afghanistan National Development Strategy (ANDS)
SECURITY
Governance
SOCIAL AND ECONOMIC DEVELOPMENT
Pillar
Pillar
Pillar
Pillar
Pillar
Pillar
Education & Culture
Health & Nutrition
Agriculture Rural
Development
Social Protection
Economic
Governance PSD
Security
1
Pillar
Infrastructure
Natural Resources
Pillar
Good Governance
w
2
3
4
5
6
7
8
Source: Afghanistan National Development Strategy (ANDS).
1.3 Historical phasesstoriche della riforma - The Afghan ownership phase (2007-2009)
Fasi of justice sector reform del settore giudiziario
27
28. 1.4
The transition phase (from 2010 onwards)
T
he adoption of a National Justice Sector Strategy
(NJSS) and the National Justice Program (NJP)
as the principal results of the 2007 Rome
Conference, along with the definitive approval of
ANDS in 2008, were milestones in the Afghan
reconstruction process, representing solid and shared
institutional support showing the way forward for all of the
actors involved. One consequence was the strengthening
of the project management process in the justice sector on
the part of Afghan institutions by means of the core budget.
Nevertheless, a number of donors continued to organize
reconstruction projects through bilateral channels.
The two international conferences that took place in 2009,
in Moscow and The Hague, represented further stages in
the process of consolidation of the international perspective
for the strengthening of Afghan institutions. In addition, the
approval, initially by the United States and subsequently
confirmed at the November 2010 Lisbon Nato summit, of an
exit strategy for the withdrawal of international troops from
Afghanistan by 2014 marked the beginning of a transition
phase aimed at returning the management of security in all
of the country’s provinces to local forces within a relatively
short period of time.
The 2010 London Conference represented a turning point
towards the completion of the progressive and definitive
transfer of responsibility for Afghanistan to a democraticallyelected government, legitimized and reinforced by popular
vote. The objective of the London Conference was, in fact,
that of defining and approving a plan, along with a credible
road map, for a handover in a clearly defined time period to
the Afghan Government of the responsibility for security in
the country, avoiding a return of the Taliban and guaranteeing
peace and stability for a democratic Afghanistan. The
28
conference also provided the opportunity to bring to the
attention of the international community and donors certain
needs that up to that point had not been considered priority
ones, such as anti-corruption and informal justice.
The commitment of the Afghan Government, formalized for
the first time in London, to reach objectives in a clearly defined
time period, represented a strategy that was subsequently
renewed and widened at the Kabul Conference in July of
that same year. In addition to being the first conference at
ministerial level organized by the Afghan authorities, thereby
demonstrating the autonomous role henceforth to be assigned
to the Government, the Conference held in the Afghan capital
marked the decisive step towards the definitive Afghanization
of the country, replacing the previous concept of “coordination”
on the part of the international community with that of
“alignment”. The process initiated at Kabul was, in fact, that
of Government full ownership through the strengthening and
extension of the so-called clusters and the National Priority
Programs (NPP) that had already been presented in London.
These quick impact programs represented, in contrast with
those approved by the Rome Conference in 2007 which had
essentially consisted of requests on the part of institutions to
donors, objectives that the Afghan Government set for itself
and which individual institutions are to achieve according to a
pre-established calendar.
At this stage Italy oriented its activities towards priority
geographic areas (Herat and the western region), with
particular emphasis given to interventions in the sectors
of free legal aid for the indigent, extrajudicial resolution of
conflicts (through its support of the Ministry of Justice’s
Huquq Department), gender justice and specialist postuniversity legal training (through the Independent National
Legal Training Center).
1.4 Historical phases of justice sector reform - The transition phase (from 2010 onwards)
31. 2. Areas of
intervention
2.1 Assistance for reform of judicial rules and procedures
2.1.1 The lead phase and the Criminal Procedure Code
2.1.2 The key partners phase and laws promoted through the Criminal Law Reform Working Group
2.1.3 Laws promoted through other working groups
2.2 Training of judicial sector personnel and strengthening of judicial institutions
2.2.1 Legal training and assistance to judicial institutions
2.2.2 Free legal aid for the indigent
2.2.3 Juvenile justice
2.2.4 Gender justice
2.3 Assistance to judicial institutions in the field of infrastructure
2.3.1 Prison infrastructure
2.3.2 Infrastructure for other judicial institutions
32. I
n the post-war period, Afghanistan found itself confronting enormous challenges and changes: absence
of an institutional and legislative framework, devastated human and infrastructural resources, millions of
citizens who were refugees in neighboring countries
and were embarking on the uncertain path of return, and
the continuation of the insurgency in its various manifestations in different parts of the country4.
From 2001 to the present time, Italy has provided direct
support to the efforts of the international community aimed
at the institutional and economic reconstruction of Afghanistan, with a major contribution in terms of both human and
financial resources, having invested altogether more than
500 million euros in aid for the country’s reconstruction.
Since 2002, the Italian intervention in support of the justice system, traditionally one of the most important areas of
the Italian contribution towards Afghan reconstruction, has
focused on the following three sectors: legislative reform,
judicial training for workers in the sector, and logistical and
infrastructural assistance to judicial institutions. The priority problems in the justice sector that were at the forefront
of the international community’s intervention, initially under
the guidance of Italy in its role as lead nation, ranged from
32
the absence of a complete and organically structured legislative and infrastructural framework, to the total lack on
the part of judicial institutions of both operative instruments
and the minimum level of human resources necessary for
starting the process of reconstructing the presence of the
rule of law over the entire Afghan territory.
During the initial years, the Italian interventions dealt primarily with the reform of the nation’s laws and legal system, through Italy’s support of the Judicial Reform Commission and by its participation in working groups, notably
those established within the framework of the Afghanistan
National Development Strategy (ANDS), whose task was to
provide specialist legal assistance directed towards legislative reform of judicial rules and regulations. These activities
were complemented, over the course of the years, by infrastructural interventions aimed at reconstruction and renovation of facilities and training, initially concentrated in the
capital and adjoining areas.
The necessity to extend the rule of law beyond the capital,
and thus to ensure that formal justice was also available
to people resident in the more remote parts of the country,
impelled the international community, and Italy in the first
instance, to extend the “outreach” of its interventions. After
2.1 Areas of intervention
33. the first years of organization and reconstruction of the institutional framework, Italian activity in the justice sector has
therefore concentrated on training activities for personnel in
judicial institutions (Ministry of Justice, Attorney General’s
Office and Supreme Court) as well as on the construction
and renovation of judicial infrastructure in various provinces
and districts in the country. Beginning in 2009-2010 the
principal focus of such activities was on the western region,
and in particular Herat province, where a steady Italian military and civil presence provided a favorable opportunity for
the development of a unified strategy aimed at maximizing
the efficient use of the resources deployed by the Italian
Government for supporting reconstruction efforts in various
priority sectors of intervention in this province. Beginning in
2008, with the establishment of the Local Technical Unit of
Italian Development Cooperation, the various projects illustrated in the following chapters, which concern initiatives
carried out through both bilateral and multilateral channels,
the latter through UN agencies and other international organizations, were directly monitored on site by this unit.
The objective of the activities carried out has been, on the
one hand, to contribute to the re-establishment of a justice
system consistent with the criteria of the new Constitution
enacted in 2004, with international conventions subscribed
to by Afghanistan, and in particular with treaties regarding
the protection of human rights. On the other hand, the aim
has also been to re-establish the presence of the rule of law
in Afghanistan and to ensure efficiency and transparency in
the provision of services by judicial institutions throughout
the whole country, guaranteeing access to the justice system, in particular, to the most vulnerable elements of the
population.
Overall, Italy has invested to date more than 80 million euros
in support of the justice sector, of which approximately 62
million have been disbursed through multilateral programs
carried out by the principal UN agencies and organizations
present in Afghanistan5, 10 million have been included in
the budget (through the contribution to the Justice Sector
Reform Project, funded multilaterally through the Afghan
Reconstruction Trust Fund administered by the World Bank,
which provides support to the Afghan national budget),
while about 9 million have been used to carry out directlymanaged bilateral interventions.
4 Anti-government elements (AGE).
5 IDLO, UNDP, UNODC, UNOPS, UNICEF, UNIFEM, World Bank, IMG, OHCHR.
2.1 Areas of intervention
Fasi storiche della riforma del settore giudiziario
33
34. Italian contributions to the justice sector between 2002 and 2010.
2002
2002-2010
BILATERAL CONTRIBUTIONS
Support to the State
budget (JSRP-ARTF)*
Multilateral
projects
Total
€ 9,577,803.90
€ 10,000,000.00 € 61,614,570.23
€ 81,192,374.13
2002
€ 560,000.00
€ 8,238,506.85
€ 8,798,506.85
2003
€ 428,698.61
€ 12,500,000.00
12,928,698.61
2004
€ 1,243,791.58
€ 9,400,000.00
€ 10,643,791.58
2005
€ 1,744,510.43
€ 11,244,592.00
€ 12,989,102.43
2006
€ 1,348,020.89
€ 6,750,000.00
8,098,020.89
2007
€ 1,368,239.70
€ 10,500,000.00
€ 11,868,239.70
2008
€ 839,842.35
€ 331,471.38
€ 11,171,313.73
2009
€ 857,049.61
€ 10,000,000.00
€ 1,150,000.00
€ 2,007,049.61
2010
€ 1,187,650.73
€ 1,500,000.00
€ 2,687,650.73
* Justice Sector Reform Project - Afghanistan Reconstruction Trust Fund
12%
Bilateral
contributions
76%
Multilateral
projects
12%
Support to the
State budget
(JSRP-ARTF)
34
2.1 Areas of intervention
35. More than 40 per cent of the multilateral contributions6
have served to finance reconstruction and renovation of
judicial infrastructure, with the remainder being used
for activities relating to the preparation of legal texts,
institutional strengthening and training7.
Multilateral contributions for infrastructure, and for legislative reform, training and
institutional strengthening, between 2002 and 2010 8.
2002
Legislative reform, training and
Infrastructure
institutional strengthening
Total
2002-2010
€ 41,619,978.23
€ 29,994,592.00
€ 71,614,570.23
2002
€ 7,288,506.85
€ 950,000.00
€ 7,288,506.85
2003
€ 9,950,000.00
€ 2,550,000.00
€ 9,950,000.00
2004
€ 2,100,000.00
€ 7,300,000.00
€ 2,100,000.00
2005
€ 5,000,000.00
€ 6,244,592.00
€ 5,000,000.00
2006
€ 1,300,000.00
€ 5,450,000.00
€ 1,300,000.00
2007
€ 8,000,000.00
€ 2,500,000.00
€ 8,000,000.00
2008
€ 5,331,471.38
€ 5,000,000.00
€ 5,331,471.38
2009
€ 1,150,000.00
€ 1,150,000.00
2010
€ 1,500,000.00
€ 1,500,00.00
58%
Legislative reform, training and
institutional strengthening
42%
Infrastructure
6 Including 10 million included in the State’s budget through the contribution to the Justice Sector Reform Project, funded multilaterally through the Afghan
Reconstruction Trust Fund administered by the World Bank.
7 The majority of the multilateral projects involve activities that can be ascribed to more than one sector. The reported division among sectors is therefore
based on estimates.
8 See note 7.
2.1 Areas of intervention
35
36. Multilateral contributions to the justice sector between 2002 and 2010, by organization.
2002
2002 - 2010
IDLO
€ 19,050,000.00
UNDP
€ 16,887,333.60
UNODC
€ 12,050,000.00
UNOPS
€ 944,592.00
UNICEF
€ 700,000.00
UNIFEM
€ 4,582,644.63
World Bank - Support to the State budget (JSRP - ARTF)
€ 10,000,000.00
IMG
€ 5,000,000.00
OHCHR
€ 400,000.00
UN office Vienna
€ 2,000,000.00
€ 71,614,570.23
2002
2003
€ 600,000.00
€ 1,500,000.00
€ 3,805,862.22
€ 7,750,000.00
€ 950,000.00
€ 550,000.00
2004
€ 2,000,000.00
2005
€ 5,000,000.00
2006
€ 300,000.00
2007
€ 7,000,000.00
€ 5,000,000.00
€ 7,300,000.00
€ 300,000.00
2008
2009
2010
€ 1,150,000.00
€ 1,500,000.00
€ 1,150,000.00
€ 1,500,000.00
€ 331,471.38
€ 450,000.00
€ 2,500,000.00
€ 1,000,000.00
€ 1,000,000.00
€ 944,592.00
€ 700,000.00
€ 2,582,644.63
€ 10,000,000.00
€ 5,000,000.00
€ 300,000.00
€ 100,000.00
€ 2,000,000.00
€ 8,238,506.85
€ 12,500,000.00
≈14%
World Bank
Support to the
State budget
(JSRP-ARTF)
≈17%
UNODC
36
€ 9,400,000.00
€ 11,244,592.00
€ 6,750,000.00
€ 10,500,000.00
€ 10,331,471.38
≈7% IMG
≈1% OHCHR
≈6%
UNIFEM
≈1%
UNOPS
≈3% UN Office Vienna
≈1%
UNICEF
≈27% IDLO
≈23%
UNDP
2.1 Areas of intervention
37. The Herat province
A
mong the provinces of
Afghanistan, Herat stands out
for its historic, commercial
and strategic importance, and
for being the cradle of Dari
language culture and literature
in the country. It is a region rich
in natural resources, including
granite and valuable minerals,
and boasts a thriving agricultural
sector (producing saffron, fruits
and vegetables), a dynamic sector
specialized in artisanal products
(Persian tapestries, textiles,
cashmere) and a promising infant
industry. Since ancient times
Herat, which is located on the “Silk
Road”, has also been a commercial
crossroads between Iran and
Turkmenistan. In terms of security,
the province is relatively stable,
although anti-government groups
and anti-coalition militias continue
to operate there. Additional problems
are presented by unmarked mine
fields and the major impact of
drug trafficking, the latter being an
important source of income for the
local population.
The Emergency Program for the
most vulnerable elements of the
population in Herat province and
adjoining areas was initiated through
the creation of a Development
Cooperation Office in Herat in
April 2005. The headquarters for
the Office was initially maintained
inside the civil-military compound
of the Provincial Reconstruction
Team (PRT), which is under Italian
command. Later, in 2009, an
autonomous and independent
headquarters was set up outside
the PRT compound. The emergency
activities carried out by Italian
Development Cooperation focused
initially on assistance to the most
vulnerable elements: women,
children, Afghan refugees who had
returned from Iran, and the disabled.
The activities currently being
carried out by Italian Development
Cooperation in Herat cover a wide
range of sectors including health,
agriculture, infrastructure, microcredit, women’s entrepreneurship,
the private sector, support to
provincial public administration
(“governance”) and, of course,
the justice sector. The activities in
this last sector have been directed
principally towards: 1. training
personnel of the provincial judicial
institutions, in particular those from
the Attorney General’s Office and
the Ministry of Justice, in order
to strengthen these institutions’
operational capacity; 2. supporting
organizations responsible for
providing legal assistance services
to the most vulnerable elements of
the population; 3. providing legal
training at the university and postuniversity levels.
Herat province today represents
the operational focus of Italian
Development Cooperation in the
western part of the country, where
the majority of the development
initiatives financed by the Italian
Government have been concentrated.
Provincial reconstruction team (PRT)
Italy is present militarily in Herat
province as part of the Nato/
ISAF mission: in this context Italy
manages the Regional Command
West (RC-W) and directs the
Provincial Reconstruction Team (PRT)
in Herat, where approximately 1,400
Italian soldiers are operating. This
latter element is also contributing to
the realization of activities benefiting
the local population, primarily in the
infrastructure sector.
Rule of Law activities implemented by PRT in HERAT
Year
Infrastructure
Place
2006
Construction of preventive detention center
Injil District
2006
Construction of preventive detention center
Chuni Gawalian
neighborhood
2007
Construction of Juvenile Rehabilitation Center
Herat
2007
Construction within the prison in Herat of a detoxification center for detainees who are
drug addicts
Herat
2008
Construction of women’s section of the prison in Herat
Herat
2009
Putting in place new security system for the prison in Herat
Herat
2009
Construction of a Visitors and Training Center in the prison in Herat
Herat
2010
Installation of electrical and water systems in the building of the Attorney General’s Office
Herat
2010
Renovation of the men’s and women’s bathrooms in the Juvenile Rehabilitation Center
Herat
2010
Renovation of the outer wall and playground of the Juvenile Rehabilitation Center
Herat
2.1 Areas of intervention
37
38. 2.1
Assistance for reform of judicial rules
and procedures
T
he first steps towards the formation of a state
based on the rule of law took place during
the reigns of Amir Dost Mohammad Khan
and his son Sher Ali Khan (1826-1879). The
introduction of an organized and efficient
system, however, had to wait for the reign of Amir Abdur
Rahman Khan (1880-1901). Through the centralization of
the state structure and the implementation of a series of
secular rules inspired by Islamic law, the Amir sought to
establish a uniform justice system, with courts and judges
nominated by the central authority, and with the issuing
of binding decrees. The enormous production of rules and
laws, and the associated powers of enforcement, were
not accompanied, however, by an equivalent production
of manuals and interpretive material. Moreover, although
strongly implanted in the major urban centers, the formal
justice sector never reached the countryside, which
continued to be regulated, with regard to both civil and
criminal matters, through councils of village elders. The
creation of a centralized judicial bureaucracy inspired
by Islamic law contributed not only to the Islamization of
the country but represented the first attempt to impose a
monarchy and a unified legal system in Afghanistan. The
efforts of Amir Abdur Rahman Khan were not successful,
however, in eliminating the presence throughout the
country of an informal system of justice based on tradition
and custom, and administered by village elders.
It was not until the coming to power of Amir Amanullah
Khan in 1919 that a real reform process characterized by
a codified and structured system was initiated. In 1923
Afghanistan was given its first Constitution which, among
other things, established an independent judiciary and
38
severely limited the scope of the informal justice system. In
1925 the first criminal code, of marked religious influence,
was introduced and the Amir began a major program of
educating Muslim scholars (ulema) on positive law. The
drastic reduction of customary powers of the different
tribes led to a rebellion which, in 1929, deposed Amanullah
and imposed upon his successors a more moderate
attitude towards the informal justice systems present in the
country. Mohammad Nadir Shah was proclaimed king, and
in 1931 a new Constitution was implemented that was far
more flexible towards local tribes and their jurisdictional
powers, and in which Islam was proclaimed to be the state
religion and source of law. The legislative policy of Nadir
Shah continued during the reign of his son, Mohammad
Zahir, who occupied the throne from 1933 until 1973. The
creation of administrative, commercial and conciliation
courts in the 1930s was accompanied in 1946 by the
opening of a Sharia Faculty at Kabul University, a symbol of
the willingness to integrate customary jurisprudence within
a coherent framework of secular law.
In 1964 a new Constitution was promulgated, officializing
the coexistence of secular and religious powers. It provided
for equality between men and women, for the protection
of private property, for the right to form political parties
and for the predominance of the formal system of justice
and law vis-à-vis the informal one. A substantial measure
of independence was conferred upon the judicial powers,
an Attorney General’s Office was created (which, however,
was only formally recognized as an autonomous organ in
the 1980 Constitution) and a legislative office was created
within the Ministry of Justice (which continued to prepare
legal texts even during the Taliban regime).
2.1 Areas of intervention - Assistance for reform of judicial rules and procedures
39. The period from 1973 to 1978 was the most prolific in
terms of the issuing of consolidated legal texts. In 1976
constitutional reforms were reinforced by substantial
amendments to the 1925 criminal code (still in force today).
Also in 1976, a law was promulgated on the jurisdiction
and organization of courts in Afghanistan. The jurisdictional
system was divided into two parts: on the one hand, ordinary
courts (Supreme Court – with powers of a constitutional
organ – the Court of Cassation, Appeals Court, provincial
courts and district courts of first instance) and, on the
other, specialized courts (e.g., juvenile and labor courts).
In 1974 the Criminal Legal Code elaborated in 1965 was
significantly revised, and in 1979 this was supplemented
by a law dealing with discovery and investigation of crimes.
Despite the numerous reforms to the Constitution since
1964, Islamic culture and custom continued to monopolize
the exercise of justice, due in large part to the country’s
high degree of illiteracy, limited means of communication
and its topography.
In 1973 King Zahir Shah was deposed in a coup d’état and
Mohammad Daoud came to power. In 1977 Daoud issued
a new constitution, proclaiming the Republic of Afghanistan
and integrating religious principles into secular law. This
constitution never came into effect, however, due to the
1978 coup d’état and the December 1979 Soviet invasion,
which brought in its wake a socialist-oriented Constitution
in 1980. Islam ceased to be the state religion and source
of law, and a new, structured jurisdictional system was
created that strongly reinforced the equality of the sexes.
Courts on family law were entrusted to female judges who
promoted rights of women in cases of divorce, and the
entire legislative system was reformulated along the lines
of the Soviet model.
The sixth Constitution of the Afghan Republic was
promulgated in 1987 by the Najibullah government. In
an attempt to promote reconciliation with the armed
resistance, Islam was reintroduced as the state religion and
source of law, but the legislative structure and apparatus
created after the Soviet invasion were left intact.
With the withdrawal of the Soviet army in 1989, and the
arrival of the Mujahedeen in 1992, Islamization of the
country took place during a period of widespread legislative
anarchy. Evidence of the inefficiency of the justice system
is provided by the fact that while the 1987 Constitution was
left formally in effect, the Mujahedeen radically changed
the structure of the state and dismantled the rule of law,
assigning the exercise of jurisdictional powers to the
informal justice based on custom and tradition, this being
in any event the only justice system accessible to virtually
the entire citizenry of the country.
In 1996 the new Taliban regime revoked all laws
promulgated since 1977 and formally recognized the
1964 Constitution as being in effect. The rule of law was
administered through a dual system based on the use of
traditional and formal justice. However, given the lack of an
independent and trained judiciary, the formal courts ended
up applying the same customary rules utilized by the village
councils. A large number of special courts were established
for adjudicating special cases, and punishments became
the means for promoting and imposing the values and
system of Islamic life. A new criminal code with a strong
theological imprint was prepared in 1996, although
effective power resided with the police who acted arbitrarily
and in accordance with the instructions of religious leaders.
The national association of lawyers, created by a 1972
law, was closed in 1996, and a defense system under the
control of the executive power was established in 1999
through a special law.
After the collapse of the Taliban regime, the international
community found itself confronting a rather uneven
situation. Despite the implementation of a normative
structural apparatus in the 1960s and 1970s, followed
by the Soviet-style system imported in the 1980s, actual
changes on the ground had been quite limited. From July
1964 until the beginning of 2002, there was no single
register of laws in the country. From 1963 to 1992 an
Official Gazette had been published, but a large part of
the (paper) data base underlying these documents was
destroyed in the 1990s. Otherwise, only very limited data
survived concerning the justice system prior to the Taliban
period. A 1980 study had shown that, in a country the size
of France, there were 715 judges, 170 prosecutors, 162
defense attorneys, 100 public service lawyers and about 50
law professors. At least one judge was formally assigned to
220 districts, while approximately 100 other districts were
not provided with courts. Faced with the omnipresence
of a traditional justice system based on custom, the very
limited distribution of legal texts, the absence of means
of communications and the high illiteracy rate, in 2002
the international community found itself not so much in
the position of having to reconstruct the country’s justice
system, but rather in that of having to create a real justice
system for the very first time.
2.1 Areas of intervention - Assistance for reform of judicial rules and procedures
39
41. These legislative efforts were accompanied by a program
of training courses for legal professionals financed by Italy
and carried out, initially, by IDLO for civil and commercial
subjects, and ISISC (International Institute of Higher Studies
in Criminal Sciences) for criminal matters. In addition,
particular attention was given to relations with Afghan judicial
institutions, and with the Judicial Reform Commission.
The major efforts at this stage were, in any event, those
directed towards preparing the code of criminal procedure,
which was issued on 25 February 200410 as the “Interim
Criminal Procedure Code for Courts”. The text was denoted
interim since it was meant to represent an initial structure
of criminal procedure, to which more fully-structured
texts would later be added; however, seven years after its
issuance, the text prepared under the direction of Prof. di
Gennaro is still in force. During these years the Criminal
Procedure Code has molded the operation of the courts,
allowing them to provide a coherent response to the
demand for justice on the part of the Afghan people, while
establishing the basis for the creation of a new class of
legal professionals.
In view of its interim nature, the Criminal Procedure Code
remains very thinly-structured, consisting of only 98
articles, and is based on the model of civil law codes of
an accusatory nature (such as that of Italy following its
1989 reform). The code provides for the right of defense
for the indigent, for rules against arbitrary detention at the
preliminary investigation stage, and for the right to call and
examine witnesses for both parties to the process. The
need to have a light text meant that some issues were not
addressed, such as time limits for preventive detention and
the method of recourse against arbitrary arrests, which in
practice have turned out to be relatively sensitive issues. In
addition, innovative elements for Afghan culture, such as
the concept of a judicial police and that of an investigating
magistrate, required several years to be fully understood
and put into practice. The Criminal Procedure Code was
issued shortly after the promulgation of the Constitution of
the Islamic Republic of Afghanistan (signed by President
Karzai on 26 January 2004). The sought-after synergy
between the two documents had to give way, in some
cases, to the wish to give overt recognition to a role for
Hanafi jurisprudence as one of the sources of legislation.
In addition, the fact that the two documents were crafted
contemporaneously meant that there were no specific
provisions in the Constitution relating to certain principles
of criminal procedure of a particularly difficult interpretive
nature. This was the case, for example, for the relation
between the judicial police and prosecutor in the very early
stages of investigations.
Apart from the essential procedural code, during this first
stage of the Italian intervention an important contribution
was also made to the drafting of codes for juvenile justice
and prisons. The work on the Juvenile Code was initiated
following a request by UNICEF to the IJPO to coordinate
an ad hoc working group on the subject. The code was
promulgated in March 200511 and raised the age of
responsibility from seven to twelve years, while extending
the applicability of the code to all those under eighteen years
of age. The Juvenile Court was given the task of undertaking
appropriate actions on behalf of minors in situations of risk
or in need of protection. Investigations of crimes committed
by minors are to be handled by specialized prosecutors,
and to be based on the principle that punishment should
be proportional to the age of the minor and aimed at his or
her reeducation and social reintegration.
The Prison Code, worked out in coordination with UNODC,
was adopted in May 2005. The code introduced the
distinction between prisons, and centers of temporary
detention for those under investigation and subject to
preventive detention. Adult prisoners under the age of 25
are to be accommodated in separate sections of detention
facilities. Special attention was given to the human rights of
imprisoned individuals, to limiting the use of force allowable
for suppressing disobedience and disorders, to prohibiting
forced labor, and to the right to be paid for labor performed
during the period of detention.
9 General Report on the Judiciary in Afghanistan, June 2004.
10 Official Gazette, no. 820.
11 Official Gazette, no. 846.
2.1 Areas of intervention - Assistance for reform of judicial rules and procedures
41
42. 2.1.2 The key partners
phase and laws promoted
through the Criminal Law
Reform Working Group
In 2004, when the Prison Code was being prepared,
the international community promoted the creation of a
Criminal Law Reform Working Group, within the framework
of the UNODC program Criminal Law and Criminal Justice
Capacity Building in Afghanistan, co-financed by the Italian
Government.
The Criminal Law Reform Working Group (CLRWG) consisted
of judicial advisers from the larger donor countries and
international institutions, as well as representatives from
Afghan judicial institutions.
Since 2004 the CLRWG has functioned continually, keeping
in close contact with the legislative office of the Ministry of
Justice (Taqnin) and, at the request of this office, examining
the most important draft laws. The role of the CLRWG is
42
a consultative one involving both the study of proposed
laws and the drafting of opinions and technical notes on
questions of judicial reform of interest to the international
community. In terms of the latter, the analyses of the working
group are generally transmitted to members of UNAMA and
diplomatic representatives and serve as the technical basis
for discussions and political evaluations. A recent example of
this essential function has been the technical support given
to the international community for discussions concerning
the planned regulation by the Ministry of Women’s Affairs of
shelters for women who are victims of violence.
The principal function of the CLRWG remains, however, that
of providing technical and legal advice on proposed laws.
Since 2005 the group has analyzed draft laws on scientific
research and forensic medicine, anti-terrorism, extradition
and judicial cooperation, drugs, judicial police, kidnapping
and human trafficking, juvenile rehabilitation centers,
elimination of violence against women, audits, structure and
jurisdiction of the special courts, structure and powers of
the Attorney General’s Office, anti-corruption, and shelters
for women who are victims of violence.
2.1 Areas of intervention - Assistance for reform of judicial rules and procedures
43. The most demanding task facing the working group has
undoubtedly been that regarding the preparation of a revised
Criminal Procedure Code. The Code prepared in 2004 was,
in fact, considered to be only an interim document to be
replaced by a more fully articulated text that would better
respond to the conditions facing courts in Afghanistan.
The first draft of the revised code was transmitted to the
CLRWG by the legislative office of the Ministry of Justice at
the beginning of 2008. During the course of that year and
in the first few months of 2009, the text was discussed by
international and Afghan experts and substantially revised. A
special session of the CLRWG was held in Syracuse in Italy
(at the International Institute of Higher Studies in Criminal
Sciences) during the last week of April 2009 to discuss
the principal problems arising from the preparation of the
revised code, with the participation of eminent Italian and
international academics, including Professor di Gennaro
himself, judicial experts working in Afghanistan and other
representatives from Afghan judicial institutions.
The draft text of the revised Criminal Procedure Code was
finally presented at a meeting held in October 2009 at
UNODC headquarters in Vienna. The detailed text prepared
by the CLRWG incorporated both the obligations imposed
by international conventions ratified by Afghanistan as
well as international standards regarding human rights,
and was used by the Ministry of Justice as a technical
basis for preparing a draft code that was presented to the
international community at the beginning of March 2011.
Italy has recognized from the very beginning the importance
of the technical advice provided to the Afghan Government
through the work of the CLRWG, and has been everpresent in the work of this group through the qualified
judicial advisers that it has supplied. Italian specialists in
law present in Afghanistan have been appreciated not only
for their technical preparation but, above all, for the fact
that the procedural system currently in place in Afghanistan
so closely parallels that of Italy. There can be no doubt, in
fact, that the numerous Anglo-Saxon consultants, whose
experience is based on “common law”, find it difficult to
acquire the forma mentis (“way of thinking”) required to
understand a code of accusatory criminal procedure based
on the fundamental dichotomy between the investigating
magistrate and the judicial police.
2.1 Areas of intervention - Assistance for reform of judicial rules and procedures
43
