2.19. Individuals accused of ordinary crimes

This profile refers to people who are accused of ordinary crimes in Afghanistan, such as crimes against property, life, physical integrity, etc.

COI summary

In Afghanistan, there are multiple sources of law, both codified and unwritten. Courts apply provisions of the Afghan Constitution and other laws. However, in cases where there is no provision under the Constitution or the Penal Code, Hanafi jurisprudence and customary laws are applied. Corruption and lack of independence of the judiciary have been reported [Criminal law and customary justice, 1; State structure, 1.8; Society-based targeting, 1].

The State justice system is accessible within city districts or at the centre of rural districts, whereas there is limited access in the peripheries of the cities and rural areas. In those areas, traditional justice mechanisms such as jirgas and shuras are widely used. Although corporal punishment is prohibited by law, it is used regularly in rural areas. Capital punishment is rarely carried out by the government, although instances of capital punishment for ordinary crimes have been reported [State structure, 3; Society-based targeting, 1].

In areas under their control and even in areas far beyond their control, insurgents operate parallel justice mechanisms where an increasing part of the Afghan population seek justice. These courts impose harsh extrajudicial punishments, including beatings, lashing, public executions by shooting and stoning [State structure, 3; Society-based targeting, 1.6].

Risk analysis

Capital punishment, irrespective of the nature of the crime, is considered to amount to persecution. See also, the section 3.1 Article 15(a) QD. Corporal punishment would also amount to persecution. See also the section 3.2 Article 15(b) QD.

In other cases, prosecution for an ordinary crime by the State and through traditional justice mechanisms does not normally amount to persecution. However, violations of the due process of law and/or disproportionate or discriminatory punishments could amount to such severe violations of basic human rights. Being subjected to a parallel justice mechanism run by an insurgent group would amount to persecution.

The assessment of well-founded fear should take into account individual circumstances such as the area of origin of the applicant and the prevalent justice mechanisms, the nature of the crime for which he or she is prosecuted, the envisaged punishment, etc.

Nexus to a reason for persecution

Available information indicates that in the case of individuals accused of ordinary crimes, there is in general no nexus to a Convention reason for persecution. This is without prejudice to the assessment in cases where the prosecution is motivated by a Convention ground or initiated or conducted on a discriminatory basis related to a Convention ground.

Exclusion considerations could be relevant to this profile (see 6. Exclusion).