4.1. The State

The term ‘State’ (Article 7(1)(a) QD) encompasses any organ exercising legislative, executive, judicial or any other functions and acting at any level, be it central, federal, regional, provincial or local. Sometimes, private entities may also be given State powers and made responsible for providing protection under the control of the State.

In order to qualify as an actor of protection, the State has to be able and willing to protect persons under its jurisdiction.

The protection in the country of origin has to meet three cumulative conditions. It has to be:

It should also be kept in mind that effective protection is presumed not to be available where the State or agents of the State are the actors of persecution or serious harm (Recital 27 QD).

According to Article 1 of the 2004 Constitution, Afghanistan is an Islamic Republic with a president as head of state exercising his authority in all three branches (executive, legislative und judiciary). The Afghan Government is comprised of 24 ministries, which work under the chairmanship of the President. Following the 2019 disputed election result, President Ghani and his main contender Abdullah Abdullah, signed a power-sharing agreement on 17 May 2020, which recognised Ghani as the President and Abdullah as the leader of the High Council of National Reconciliation with executive powers; in addition giving to the latter the right to appoint 50 % of the cabinet. The Afghan legislative branch is called the National Assembly and is a bi-cameral parliament, comprising of the Walesi Jirga (Lower House) and Meshrana Jirga (Upper House). The Loya Jirga represents the citizens of Afghanistan and consists of members of the National Assembly, presidents of the provincial as well as district assemblies. Ministers, Chief Justice and members of the Supreme Court, as well as the attorney general, participate in the Loya Jirga sessions without voting rights [State structure, 1.2 – 1.4, 1.6].

Under the Afghan Constitution, citizens have the right to a fair trial in an independent judicial system. The judiciary in Afghanistan comprises the Supreme Court as well as Courts of Appeal and Primary Courts located in all 34 provinces. The primary courts deal with all matters of ordinary criminal, civil, and family jurisdiction. Within the capital city of each province, there are courts of appeal, which have jurisdiction over the primary courts and courts for juveniles, commercial, and family issues. The Supreme Court has no judicial or administrative authority over the executive and the legislative branches [Key socio-economic indicators 2017, 3.5.1].

In urban centres, the formal justice system is stronger compared to rural areas, where the central government is weak and lacks presence [Key socio-economic indicators 2017, 3.5.2]. In general, the judiciary in Afghanistan is described as underfunded, understaffed, inadequately trained, largely ineffective, and as subject to threats, bias, political influence, and pervasive corruption. The general insecurity, threats and targeted attacks on employees in the judiciary sector are additional challenges to provide justice services [State Structure, 3.3; Security situation 2020, 1.4.2].

Despite the existence of a formal justice system, many disputes, ranging from disagreements over land to criminal acts, are settled outside of the formal court system by informal justice mechanisms. Such mechanisms are complex systems and can involve numerous justice actors ranging from jirgas and shuras, to include also individual religious scholars, jurists, community members, NGOs and national institutions. Traditional justice mechanisms remained the main recourse for many, especially in rural areas. However, traditional and informal forms of justice continued to be implemented in Afghanistan contrary to the principle of the rule of law, human rights standards and Afghan laws [Criminal law and customary justice, 1.1, 1.7; State structure, 3].

The Afghanistan law on prisons and detention centres provides safeguards for the rights of prisoners and detainees. However, many people were imprisoned by the Afghan Government based on terrorism laws, and individuals were detained with no definite detention period. Detainees have been reportedly tortured to confess. Torture or ill-treatment practices of juveniles were also reported in ANSF custody. Poor prison conditions are also reported. Death penalty is envisaged under both, the Afghan Penal Code and Islamic law though it is rarely carried out in practice [State structure, 3.6.; Criminal law and customary justice, 1.6].

The capability of the Government in Afghanistan to protect human rights is also undermined in many districts by the prevailing insecurity and the high number of attacks by insurgents [Security situation 2019, 1.4.2]. Although the Afghan government maintained its control in Kabul, provincial capitals, major population centres, most district centres, and most portions of major ground lines of communications, the Taliban threatened district centres and contested several positions of main ground lines of communications [Security situation 2020, 1.5.3].

The World Justice Project’s Rule of Law Index 2020 ranks Afghanistan 122nd out of 128 countries, allocating it to the last place in the ‘order and security’ factor.

The police are reportedly heavily militarised and primarily focused on their role as first line of defence against insurgents in administrative centres. Police presence is stronger in the cities and police officers are required to follow guidelines such as the ANP Code of Conduct and Use of Force Policy. However, police response is characterised as unreliable and inconsistent, the police has a weak investigative capacity, lacking forensic training and technical knowledge. The police force is accused of widespread corruption, involvement in organised crime, patronage, and abuse of power: individuals in the institutions may abuse their position of power and use extortion to supplement their low incomes. Arbitrary arrest and detention by the police continued to occur and torture is endemic in the police force. Inaction, incompetence, impunity, and corruption result in underperformance: there is a reported rise in criminality, and widespread community violence, especially in the cities. An inability to prevent regular large-scale attacks with high casualty numbers, and targeted killings, is also observed [State structure, 2.1.2.; Security situation 2020, 1.4.2].

Family and domestic matters are typically kept private and the police do not get involved [Key socio-economic indicators 2017, 3.4.4].