As noted in the chapter on Refugee status,some profiles of applicants from Afghanistan may be at risk of death penalty or execution. In such cases, there would often be a nexus to a reason for persecution falling under the definition of a refugee (for example, 2.14 LGBTIQ, 2.16 Individuals considered to have committed blasphemy and/or apostasy, 2.5 Members of insurgent groups and civilians perceived as supporting them, etc.), and those individuals would qualify for refugee status. In cases where there is no nexus to a Convention ground (for example, in some cases of 2.19 Individuals accused of ordinary crimes), the need for subsidiary protection under Article 15(a) QD should be examined.

Under Article 15(a) QD, serious harm consists of the death penalty or execution:

■ The death penalty is as such, and under any circumstances, considered as a serious harm under Article 15(a) QD. The sentence does not need to have already been imposed. The mere existence of a real risk that on return a death penalty may be imposed on the applicant could be considered sufficient to substantiate the need of subsidiary protection.

■ As the addition of the term ‘execution’ suggests, Article 15(a) QD also encompasses the intentional killing of a person by non-State actors exercising some kind of authority. It may also include extrajudicial killings, but an element of intentional and formalised punishment needs to be present.

Death penalty is envisaged under both, the Afghan Penal Code and Islamic law. The new Penal Code is reported to significantly limit the number of crimes punishable by the death penalty. When the death penalty is imposed by the State, execution orders must go through all judicial instances and be signed by the Afghan president. Approximately 700 people were on death row for ‘ordinary crimes’ or crimes against internal or external security in November 2019 waiting for presidential sign-off on their executions. The death penalty is rarely carried out in practice. There were reportedly 5 executions in 2017, 3 in 2018, and none reported in 2019 [Criminal law and customary justice, 1.6; Society-based targeting, 1.4.1].

Insurgents, in the areas under their control, impose punishments through parallel justice systems, based on a strict interpretation of the Sharia. This includes instances of executions, including public executions by stoning and shooting [Criminal law and customary justice, 1.8, 2.3.3; Anti-government elements, 2.5; Society-based targeting, 1.6].

If there is a reasonable degree of likelihood of death penalty or execution, subsidiary protection under Article 15(a) QD shall be granted, unless the applicant is to be excluded in accordance with Article 17 QD.

In some cases, the death penalty would have been imposed for a serious crime committed by the applicant, or for other acts falling within the exclusion grounds (Article 17 QD). Therefore, although the criteria of Article 15(a) QD would be met, exclusion considerations should be examined (see 6. Exclusion).