COMMON ANALYSIS
Last update: January 2023
As noted in the chapter 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, 3.11. Individuals considered to have committed blasphemy and/or apostasy and 3.17. LGBTIQ persons), and those individuals would qualify for refugee status.
In cases where there is no nexus to a Convention ground, the need for subsidiary protection under Article 15(a) QD should be examined.
Death penalty is envisaged under Islamic law. The former Penal Code was reported to significantly limit the number of crimes punishable by the death penalty and the death penalty was rarely carried out in practice. Before the Taliban takeover, in the areas under their control, they imposed punishments through a parallel justice system, based on a strict interpretation of the sharia. This included instances of executions, including public executions by stoning and shooting [Criminal law and customary justice, 1.8, pp. 19, 21; 2.3.3, p. 27; Anti-government elements, 2.5, p. 21; Society-based targeting, 1.6, p. 22].
The justice system imposed following the Taliban takeover is believed to be a continuation of the established shadow courts during their insurgency. Sharia is the basis for the judgements and actions of judges and police officers in Afghanistan under Taliban rule [Targeting 2022, 1.1.4, p. 28]. Capital and corporal punishment are regarded as relevant punishments for certain crimes under sharia according to Taliban officials [Country Focus 2022, 1.5, p. 30].
It was suggested that Taliban judges avoided to issue too harsh punishments to avoid losing support among the population [Targeting 2022, 1.1.4., p. 35]. There were no reports on capital punishments issued by a court as of early December 2021 [Country Focus 2022, 1.5, p. 30]. However, two events of public display of the corpses of persons allegedly involved in crimes were reported in Herat in late September and early October 2021 [Security 2022, 1.2.4., p. 33; 4.13.1, p. 124]. Neither report on these instances mentioned any court proceedings [Country Focus 2022, 1.5, p. 29]. In February 2022, the Taliban had issued new rules mandating that alleged criminals should be tried three times and that death penalties must be signed by the Taliban supreme leader [Security 2022, 1.2.4, p. 33].
As of June 2022, UNAMA had recorded extrajudicial killings of five women and two men accused of extramarital relationships [Targeting 2022, 1.1.4., p. 35]. According to sharia, zina is punished with stoning or lashing, depending on whether or not the perpetrators are married [Targeting 2022, 5.1.6., p. 94]. In February 2022, a woman and a man were stoned to death for alleged adultery in Badakhshan Province on order by a district judge. In addition, four people were reportedly stoned to death over rape accusation in Uruzgan in December 2021 [Targeting 2022, 1.1.4, p. 35].
Extrajudicial killings of accused ISKP affiliates by the Taliban were also reported. UNAMA recorded 59 such incidents in the reporting period 15 August 2021–15 June 2022. Most incidents took place in Chaparhar District and Jalalabad City, Nangarhar Province [Targeting 2022, 1.4, p. 49]. Summary executions of alleged ISKP affiliates by the Taliban were also reported. Persons with perceived links with ISKP were killed without due process, drawn out of their homes and shot on the spot in Nangarhar. Similar events were also reported in Laghman and Kunar [Country Focus 2022, 2.5, p. 47; Targeting 2022, 1.4, p. 50]. Furthermore, UNAMA documented at least 10 cases of extrajudicial killings of individuals accused of NRF-affiliation by the de facto authorities in the first months of 2022 [Security 2022, 3.1, p. 61]. Around 100 cases of extrajudicial killings of persons working for the former government, former ANDSF personnel or their family members between mid-August 2021 and February 2022 are attributed to the de facto authorities or their affiliates [Security 2022, 3.2, p. 68].
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 7. Exclusion).