This profile refers to people who are accused of ordinary crimes in Afghanistan, such as crimes against property, life, physical integrity, etc. The section does not intend to cover acts, which are not criminalised according to international standards (see for example, 2.10 Individuals perceived to have transgressed moral codes, 2.12 LGBTIQ persons, 2.14 Individuals considered to have committed blasphemy and/or apostasy)
Before the Taliban takeover, there were multiple sources of law in Afghanistan, both codified and unwritten. Courts applied provisions of the Afghan Constitution and other laws. However, in cases where there was no provision under the Constitution or the Penal Code, Hanafi jurisprudence and customary laws were applied. Corruption and lack of independence of the judiciary were reported [Criminal law and customary justice, 1; State structure, 1.8; Society-based targeting, 1].
The State justice system was accessible within city districts or at the centre of rural districts, whereas there was limited access in the peripheries of the cities and rural areas. In those areas, traditional justice mechanisms such as jirgas and shuras were widely used. Although corporal punishment was prohibited by law, it was used regularly in rural areas. Capital punishment was rarely carried out by the former government, although instances of capital punishment for ordinary crimes have been reported [State structure, 3; Society-based targeting, 1].
Before the Taliban takeover, in areas under their control and even in areas far beyond their control, the Taliban operated parallel justice mechanisms where an increasing part of the Afghan population sought justice. These courts imposed harsh extrajudicial punishments, including beatings, lashing, public executions by shooting and stoning [State structure, 3; Society-based targeting, 1.6].
Following the Taliban takeover, they have made clear statements regarding the required adherence to the Sharia [Security September 2021, 1.1.2].
Capital and corporal punishments, irrespective of the nature of the crime, are considered to amount to persecution. Violations of the due process of law and/or disproportionate or discriminatory punishments could also amount to such severe violations of basic human rights.
The individual assessment of whether there is a reasonable degree of likelihood for the applicant to face persecution should take into account individual circumstances, such as the nature of the crime for which they may be prosecuted and the envisaged punishment.
Nexus to a reason for persecution
In the case of individuals accused of ordinary crimes, there would in general be no nexus to a Convention reason. However, where a well-founded fear of persecution is established in relation to the envisaged punishment under Sharia law, persecution may be for reasons of religion. In individual cases, the prosecution may (also) be motivated by another Convention ground or initiated or conducted on a discriminatory basis related to another Convention ground.
|Exclusion considerations could be relevant to this profile (see the chapter 6. Exclusion).|