COMMON ANALYSIS
Last update: April 2022

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, 2.14 LGBTIQ persons, 2.10 Individuals considered to have committed blasphemy and/or apostasy, 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 2.17 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 a death penalty may be imposed on the applicant upon return 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 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, 2.3.3; Anti-government elements, 2.5; Society-based targeting, 1.6].

The justice system imposed following the Taliban takeover is believed to be a continuation of the established shadow courts during their insurgency. Sharia law is the basis for the judgements and actions of judges and police officers in Afghanistan under Taliban rule. Capital and corporal punishment are regarded as relevant punishments for certain crimes under Sharia law according to Taliban officials. There were no reports on capital punishments issued by a court as of early December 2021. It was suggested that Taliban judges avoided to issue too harsh punishments to avoid losing support among the population. 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. Neither report on these instances mentioned any court proceedings [Country Focus 2022, 1.5].

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].

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).