COMMON ANALYSIS
Last update: April 2022
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, 2.9 Individuals perceived to have transgressed moral and/or societal norms, 2.14 LGBTIQ persons, 2.10 Individuals considered to have committed blasphemy and/or apostasy)
COI summary
Corruption and lack of independence of the judiciary were reported under the former Afghan government. 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, 1.8; Criminal law and customary justice, 1.6; 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]. The justice system imposed is also believed to be a continuation of the established shadow courts during their insurgency. Capital and corporal punishment are regarded as relevant punishments for certain crimes under Sharia law according to Taliban officials (e.g public shaming for petty crime and public execution of a kidnapper. However, it was not always clear whether punishments were issued by a court or on the spot by Taliban fighters [Country Focus 2022, 1.5.1].
There were no reports on capital or corporal punishments issued by a court as of early December 2021. In the end of October 2021, it was indicated by a local judge in Ghazni that such punishments could return in practice, although this would require a lengthy decision-making process. It was suggested that Taliban judges avoided to issue harsh punishments to avoid losing support among the population. However, there were reports on Taliban fighters subjecting civilians to violent treatment, inter alia whipping alleged thieves. It was also reported that the Taliban incarcerated people with minor ‘suspicion of illegal activity’ [Country Focus 2022, 1.5].
Risk analysis
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.
Where no nexus is substantiated, see the sections Article 15(a) QD or Article 15(b) QD, respectively.
