Italy and the rebirth of the afghan justice system
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Italy and the rebirth of the afghan justice system Document Transcript

  • 1. Printed in August 2011 The contents of this publication, including any opinions or analysis, indicate the personal assessment of the authors and do not necessarily reflect the official views of policies of the Directorate General for Development Cooperation of the Italian Ministry of Foreign Affairs.
  • 2. Italy and the Rebirth of the Rule of Law in Afghanistan The Italian contribution to justice reform over the decade 2001-2011
  • 3. Italy and the Rebirth of the Rule of Law in Afghanistan The Italian contribution to justice reform over the decade 2001-2011 Edited by Michela Perathoner Editorial coordination Alberto Bortolan, Daniele Canestri, Osvaldo Lingua, Michela Perathoner, Walter Zucconi Texts by Michela Perathoner, Daniele Canestri, Osvaldo Lingua Acknowledgments This publication has been made possible through financing provided by the Directorate General for Development Cooperation of the Italian Ministry of Foreign Affairs, under the leadership of Minister Plenipotentiary Elisabetta Belloni. We would like to thank the Italian Ministry of Foreign Affairs for its support to the Justice Program, particularly under the present leadership of Minister Franco Frattini. We would also like to thank for their contributions: Claudio Glaentzer, Ambassador, Italian Embassy in Kabul Alberto Bortolan, Director, Italian Development Cooperation Office in Afghanistan Mohammad Qaasem Hashemzai, Deputy Minister of Justice of Afghanistan Giuseppe di Gennaro, former Special Adviser for the reconstruction of the Afghan justice system Rosario Aitala, Senior Adviser to Italian Foreign Minister – Crisis Areas and International Crime, Ministry of Foreign Affairs, Rome. We would like to thank Isaac Corrado and Mohammad Jawed Massoud for their aid in gathering information, the latter of whom was also responsible for translating interviews from Dari. Finally, we wish to thank all the representatives of the Afghan judicial institutions and the international workers for the information they have provided and the interviews they have given. Graphics and layout Rainoldi – Grafica per la comunicazione – Milan (Italy) Photos Marco Valerio Esposito Fabrizio Falcone International Development Law Organization (IDLO) International Management Group (IMG) Italian Ministry of Foreign Affairs United Nations Assistance Mission in Afghanistan (UNAMA) United Nations Development Programme (UNDP) United Nations Office on Drugs and Crime (UNODC) Translation David Brodsky First edition August 2011 © DGCS, Italian Development Cooperation Office – Italian Embassy, Kabul www.coopitafghanistan.org
  • 4. Italy’s involvement in supporting the rebirth of a free and democratic Afghan state has been demonstrated since the early 1990s, when the royal family, in exile in Italy since 1973, and other elements of the Afghan diaspora chose Rome as their headquarters for promoting and encouraging the efforts of the international community to support the country. “Civilization always wins out over barbarism just as light does over darkness.” With these words, His Majesty Mohammad Zahir Shah, the last king of Afghanistan and “Father of the Nation” from 2002 until his death, showed the way towards re-establishing peace in Afghanistan. This same spirit – based on the conviction that to construct a durable peace it is first necessary to combat ignorance and underdevelopment, both sources of violence, hate and intolerance – has motivated and oriented since the very beginning the Italian effort as part of the peacemaking and reconstruction process that was undertaken by the international community in Afghanistan in 2001 and continues to the present day. The Italian contribution has manifested itself in different manners: from strengthening security in the country, the indispensable condition for the entire peace process, to reconstructing infrastructure and improving basic services, such as the health sector and education, these being absolute prerequisites for social and economic development. The Italian involvement has further distinguished itself by activities that are perhaps less well known – such as preservation of national historical monuments considered by UNESCO as World Heritage, the Minaret of Jam in Ghor province being a notable example – and that are aimed at preserving a sense of memory and belonging disrupted by thirty years of uninterrupted conflict, on the part of a population that today is preponderantly very young, with an average age of less than 15 years. Afghanistan has since time immemorial represented an important crossroads between West and East, as witnessed for example by the art of Gandhara – product of a long 6 period of contact and osmosis among Hindu, Buddhist and Greco-Roman cultures between the 1st century BC and the 7th century AD – and by the commercial and cultural exchanges in the following centuries that encouraged a fruitful rapprochement between distinct universes. This memory represents a treasure to be preserved in the current hostile atmosphere of factions that bring with them intolerance and misguided efforts to impose a pseudoculture that is very distinct from the rich and highlydeveloped Islamic civilization. The re-establishment of the rule of law in Afghanistan is one of the essential conditions for ensuring a solid and shared base for the restoration of harmonious relations among the different ethnic groups that populate the country. The ability of the State to provide essential public services in an efficient and self-sustainable manner depends not only on the successful social and economic reconstruction of the country, but also on the extent to which legal certainty in all its manifestations is established throughout the country. Development and security for the Afghan people cannot be achieved without judicial institutions capable of ensuring the consolidation of a rule of law that is based on transparent governance of the collective resources, on respect of the rules of living together, on the defense of human rights, and on the satisfaction of the basic needs of the population. Over the past decade, the Italian Government has made a significant contribution to the reform of the Afghan justice system, both through bilateral initiatives and via its financing of multilateral projects whose primary objective was the strengthening of judicial institutions. Italy has also invested human and financial resources in training activities for personnel of the Ministry of Justice, the Attorney General’s Office and the Supreme Court, and for employees in the justice sector, paying particular attention to the defense of the rights of the most vulnerable elements of the population, especially women and juveniles, through free legal aid programs for the indigent. Foreword
  • 5. Claudio Glaentzer, Ambassador, Italian Embassy in Kabul. Over the past few years there has been growing support for a rapid and full “Afghanization” of the reconstruction process. Italy has consistently supported the Afghan core budget, to which 80 per cent of its own grant assistance has been allocated. Italy is also one of the donor countries to have channeled to the Afghan budget a significant part of its own aid in support of the justice sector – to the ARTF (Afghan Reconstruction Trust Fund), via the Justice Sector Reform Project – reflecting its firm belief that it is the Afghan people themselves who are the primary architects of their own future. Afghan leadership in which the Government has the responsibility not only for defining sector strategies but also for the direct control and management of the resources required for their implementation. The Italian commitment in Afghanistan in support of the rule of law has been a particularly important one, both in terms of resources employed and results achieved. This booklet thus seeks to be an informative instrument providing documentation on the principal interventions that have been carried out in this sector through the interest and support provided by our country. The present publication grew out of an effort to retrace the principal stages of the Italian contribution to the strengthening of the reform process for Afghan judicial institutions, from the initial emergency stage immediately following the fall of the Taliban regime, to the current “transition” stage characterized by the consolidation of Foreword Claudio Glaentzer Ambassador, Italian Embassy in Kabul 7
  • 6. Contents Introductions p. 10 The Italian involvement in Afghanistan p. 10 by Alberto Bortolan, Director, Italian Development Cooperation Office in Afghanistan The Italian contribution to justice sector reform p. 12 by Mohammad Qaasem Hashemzai, Deputy Minister of Justice of Afghanistan The reform of the justice system p. 14 by Giuseppe di Gennaro, Special Adviser for the reconstruction of the Afghan justice system Ten years of support to justice reform: the principal results p. 16
  • 7. 1. Historical phases of justice sector reform p. 28 1.1 1.2 1.3 1.4 The lead phase (2003-2005) The key partners phase (2006-2007) The Afghan ownership phase (2007-2009) The transition phase (from 2010 onwards) p. 32 2. Areas of intervention p. 38 2.1 Assistance for reform of judicial rules and procedures p. 40 2.1.1 The lead phase and the Criminal Procedure Code p. 42 2.1.2 The key partners phase and laws promoted through the Criminal Law Reform Working Group p. 44 2.1.3 Laws promoted through other working groups p. 46 2.2 p. 48 2.2.1 Legal training and assistance to judicial institutions p. 56 2.2.2 Free legal aid for the indigent p. 61 2.2.3 Juvenile justice p. 66 2.2.4 Gender justice p. 70 2.3 Assistance to judicial institutions in the field of infrastructure p. 72 2.3.1 Prison infrastructure p. 80 2.3.2 Infrastructure for other judicial institutions p. 92 3. Prospects and challenges: what does the future hold? p. 96 4. Annexes p. 102 5. Glossary p. 20 p. 20 p. 22 p. 24 Training of judicial sector personnel and strengthening of judicial institutions
  • 8. Alberto Bortolan, Director of the Italian Development Cooperation Office, during a visit to Badakhshan province. © Fabrizio Falcone The Italian involvement in Afghanistan “ … [Afghanistan] is a country that desperately needs to be brought into the twentieth century, but at the same time would resent it.” Keith Best, quoted in “Afghan Frontier: At the Crossroads of Conflict”, Victoria Schofield, Tauris Parke Paperbacks, New York, 2010 the country’s reconstruction. A reconstruction in which Italy is participating alongside the Afghan people in the collective effort of the international community, formalized by the international conferences of Bonn (2001), Berlin (2004), London (2006), Rome (2007), Paris (2008), Moscow (2009), The Hague (2009), London (2010) and Kabul (2010). The quotation dates back to the 1960s but still remains valid. Afghanistan’s past and present are equally tormented. The involvement of Italian Development Cooperation (of the Ministry of Foreign Affairs), which has been present in Afghanistan since the end of 2001, has thus far led to the disbursement of more than 500 million euros. This includes funds channeled through United Nations agencies and other international organizations; funds directly allocated to the Afghan Government; funds directly managed by the Italian Embassy in Kabul; and funds employed by NGOs. Ten years after the fall of the Taliban regime, Afghanistan has yet to achieve a satisfactory level of economic, social and political security. While there are some statistics that seem to offer hope, numerous accounts from people working in rural areas (where the majority of the Afghan population live, or more accurately survive) coincide in depicting an alarming situation. It is the picture of a country still engulfed in a conflict that shows no signs of ending; a conflict that severely hinders 10 Italian assistance in the initial stage was focused on emergency interventions, supplying aid to alleviate the suffering of the most vulnerable elements of the population; over time the focus shifted to development Introduction
  • 9. interventions carried out in a perspective of sustainability, always with particular attention to the most disadvantaged and neediest elements. Supporting refugees and evacuees; distributing food aid and basic necessities; restoring basic social services (health, education, water); supporting small family businesses that generate incomes; family farming; focusing on women and children: these are some of the elements of the emergency interventions. A number of infrastructural interventions such as the construction of the Maidan Shar – Bamyan road (connecting Kabul and the interior of the country, and representing the first section of the east-west highway between Kabul and Herat) and the road that passes through the Mushai Valley (linking that agricultural area with the capital); the commitment to provide support to Esteqlal Hospital in Kabul, Baghlan Provincial Hospital, and Herat Regional Hospital; the construction of a number of schools in Kabul and Herat; the rehabilitation of important irrigation systems as well as aqueducts; focus on rural development and efforts to restore a number of agro-industrial plants; support for micro-credits; continual emphasis on “good governance” and on strengthening local administrative systems in order to improve the functioning of the country’s democratic processes and institutions; justice sector reform (to which Italian Development Cooperation has devoted, in financial terms, more than 15 per cent of its aid to Afghanistan): these are some of the contributions to the country’s development that have been supported by Italian Development Cooperation. Italian Development Cooperation has given particular attention to gender issues and those relating to the special requirements of the juvenile population. This is shown by the important individual initiatives financed in recent years aimed at effecting substantial changes in Afghan society through the enhancement and recognition of the role of women and the protection of minors, both fundamental actors (present and future) in the development process. Support to Afghan women has taken the form of professional training initiatives as well as aid to female entrepreneurs who have created independent small-scale enterprises, which represent an authentic example of economic emancipation and social development. All of this has been based on the principle of Afghan “ownership”: always avoiding the creation of parallel systems (at the community as well as the institutional level); encouraging the Afghan Government to take over the role of manager and coordinator (not only in terms of policies, but also of the direct management of financial aid provided for the country’s development); and constantly seeking to foster the development of local human resources, at all levels. Introduction Alberto Bortolan Director, Italian Development Cooperation Office in Afghanistan 11
  • 10. The Italian contribution to justice sector reform Since 2001 Afghanistan has undergone a significant period of reconstruction and reform of all key state institutions aimed at ensuring the effective and efficient delivery of essential public services to the Afghan population throughout the country. The judicial reform program has been of crucial relevance to address this challenging task. During the past ten years, with the support of the international community, we have been working hard to establish sustainable democratic institutions and to restore and maintain trust in the rule of law. implemented through international development legal aid organizations. The Independent National Legal Training Center, a unique post-graduate educational institution for the judiciary, was also established with Italian funding and it has been fully operative for over three years, serving as a center of excellence for the training of legal practitioners in Afghanistan by offering an induction stage to graduates from Law and Sharia faculties and advanced courses for officials of different justice institutions and organizations. Decades of war and conflict had destroyed the formal legal system in Afghanistan, resulting in the absence of a coherent institutional judicial framework, lack of skilled law practitioners and infrastructures, and limited outreach capacity of justice institutions. Courthouses that could still serve their original purpose were very limited, particularly in the provinces; law libraries and archives had been severely damaged; judges and lawyers were not trained to effectively promote a functional legal system and the respect for state laws and legal institutions, since, in most cases, they themselves had inadequate law knowledge. The contribution to the judicial reform process by the Italian Government – lead country for the reform of the judicial sector in the first delicate phase and a major donor in the following years – has been significant. As a result of the Italian support, thousands of members of the three main institutions of the judiciary, the Ministry of Justice, the Attorney General’s Office and the Supreme Court, have received legal training thanks to a variety of training programs covering key study areas that have been 12 In its commitment to the defense of human rights and especially of women and children, Italy has been particularly active in the gender and juvenile justice sectors. The creation of the first Elimination of Violence Against Women (EVAW) Unit – a department of the Attorney General’s Office in Kabul and Herat – is considered a major step for the protection of women’s rights in this country. The Unit is the first of its kind in Afghanistan and it also represents the first specialized system response aimed at fighting violence against women. Due to the success of this initiative, the possibility of establishing further EVAW Units in more Afghan provinces, is being explored, at present. Italy’s support to the development of a more inclusive, holistic and comprehensive reform of the justice system and to the efforts aimed at ensuring its sustainability through the Afghan ownership of the reconstruction process was particularly welcomed by our Government. This approach paved the way to the beginning of a new chapter in the partnership between the Afghan justice authorities and the international community. Italy has been a strong supporter of the Justice Sector Reform Project which is being funded Introduction
  • 11. Mohammad Qaasem Hashemzai, Deputy Minister of Justice of Afghanistan. through the Afghanistan Reconstruction Trust Fund. As of to date, this is the first project directly administered by Afghan authorities through the State’s core budget which aims at reforming the sector through a systemic and holistic approach which is fully aligned with the Afghanistan National Justice Sector Strategy. The establishment of rule of law in the country and the end of impunity in all provinces is essential to the consolidation of all stabilization and developmental efforts in Afghanistan. In this regard, the Afghan Government is appreciative of the contribution of the Italian Government in support of the justice sector. Mohammad Qaasem Hashemzai Deputy Minister of Justice of Afghanistan Introduction 13
  • 12. The reform of the justice system by Giuseppe di Gennaro Giuseppe di Gennaro, Special Adviser for the reconstruction of the Afghan justice system during the lead phase. Italy’s interest in the construction of a modern and democratic Afghan state was already demonstrated by its offer of hospitality in 1973 to King Mohammad Zahir Shah, who had been deposed by his cousin Daoud, a Soviet puppet. Towards the end of the 1990s, in the face of systematic violations of human rights committed by the Taliban, Italian concern for Afghanistan was heightened, as shown by the support it gave to Zahir’s initiative to set up meetings between Afghan intellectuals in exile who were committed to working out a better future for their country. Following the turbulent events during the period from 1992 to 2001 that were marked by a series of violent and bloody clashes between the Mujahedeen and the Taliban, the representatives of several major countries met in Bonn, under the auspices of the United Nations and with the participation of the most important social elements within Afghanistan, to develop a plan for putting Afghanistan on the path to a democratic peace. At this meeting, four countries – United States, Japan, United Kingdom and Germany – joined with Italy in taking the responsibility for contributing to the growth of democracy in Afghanistan through institution-building activities in the key social sectors. Italy was assigned the lead country role for the justice sector. When in March 2003, with the agreement of the Ministers of Foreign Affairs and Justice, I was designated to take over the 14 role of Special Adviser for the reconstruction of the Afghan justice system with the mandate to give a strong boost to the Italian lead role, I immediately recognized the importance and difficulty of the task. My long judicial experience, and in particular the numerous assignments I had carried out in international settings, had made me fully aware of the truth that underlies the Latin legal maxim justitia fundamentum regni (“Justice is the foundation of the state”). A population resident in a territory does not become a State until an authority based on laws is established that has jurisdiction over the entire community and territory. In particular, this requires a set of rules to be put in place that identifies the acts and behaviors deemed to be detrimental to the interests of the society and its members and that, as such, are to be prohibited; and that specifies the authorities that are to be invested with the power to prevent and punish such behaviors and acts. Afghanistan, which had become a unified political entity for the first time in 1747 under Ahmad Durrani, was subsequently disrupted for more than a century by the incursions of the Russians and British, and it was only in 1893, when their “Great Game” ended, that the country became a fully unified political state without, however, finding peace. Since then the history of the country has been a tormented one of perennial internal conflicts exacerbated by external meddling, more or less overt, that brought the country to such a dramatic state Introduction
  • 13. of destruction and disorder. This was the situation when the Bonn Agreement was signed, and it is therefore easy to understand what the state of the justice system was at that point. In a country where past efforts to introduce a modern judicial system had been unable to overcome tribal institutions of informal justice (the jura and shura) in which civil and criminal disputes were adjudicated through recourse to precepts drawn from a poorly-understood Koranic law, there were only scarce, and highly disordered, fragments of a formal justice system. Accordingly, the first problem confronting Italy as lead country was that of trying to understand the justice system and how it actually operated in practice. This was not an easy undertaking, in view of the fact that reliable sources were not to be found. It was therefore decided to organize an onsite investigation employing young local students. In view of their lack of training and experience, they first attended an ad hoc preparatory course and were then supplied with questionnaires to distribute in each district to individuals who had knowledge, direct or indirect, of the justice system. On the basis of the information collected, supplemented by interviews conducted by experts from the Italian lead, a report was compiled, entitled “The Afghan Judicial System under Review”, and submitted to President Karzai. In this manner it was possible to provide an outline, even if only a rough one, of the actual situation on the ground; also presented were a number of suggestions concerning possible prospects for development. This provided the basis for setting up a concrete and substantive dialogue with the relevant authorities. The knowledge obtained in this manner was used to identify the sectors of intervention, and to establish priority planning of the stages for reconstruction of the system. From this point forward, the Italian action was carried out in two contiguous areas: direct action in the form of aid; and coordination of the activities of the other lead countries and the various international agencies involved in the justice sector. In terms of direct action, the functioning of criminal justice was identified as a priority, beginning with the rules of operation for the police, public prosecutors (Saranwal), judges and prison officers. The reasons for choosing this as a priority are evident, if one considers that violations of human rights are the tragic consequence of the abuse of power, and that the best manner to prevent and eliminate such abuse lies in the discipline of criminal procedure. The respect for the rules of criminal procedure, which are normally contained within a law code, is an absolute prerequisite if the liberty and dignity of man are to be guaranteed. The quality of these rules is the essential element on which depends the real character of the country – whether it is democratic or despotic. Moreover, the existence of a unitary state depends on the territorial extension of this discipline. Steps were therefore taken to design a criminal law code, in continuous consultation with Afghan authorities and experts, with the aim of producing a modern instrument guaranteeing rights that at the same time would not represent an abrupt break with Afghan culture and tradition. The result was the “Interim Criminal Procedure Code for Courts” promulgated by the State as law on 25 February 2004. This text, despite its brevity and simplicity, contained all of the basic principles enunciated in the United Nations conventions for the protection of human rights in legal proceedings. The text was designated “interim”, in order that it might immediately be put into effect by Afghan jurists but, at the same time, allow them to subsequently draw on their own judicial experience for making suggestions on how the code could be improved. It is important to stress that the Code contained a mechanism whereby the administration of criminal justice could be extended to the entire national territory, notwithstanding the absence of an organized structure. In order to facilitate the correct implementation of the procedural rules, Italy as lead country produced an interpretive commentary of the Code. Alongside this, Italy was responsible for carrying out building works in order to begin the process of renovating physical facilities and making them operative, and it also provided professional training courses for future workers in the justice system. Coordination was a particularly demanding task. In addition to a continuous dialogue with the three Afghan institutions involved in the operation – the Ministry of Justice, the Supreme Court, and the Attorney General’s Office – this involved frequent working meetings with the UN agencies interested in the sector: UNDP, UNODC, UNICEF and UNIFEM. The fruitful cooperation obtained from the UN agencies was greatly facilitated by the fact that the majority of their financing came from Italian sources. While by no means seeking to minimize their contributions, it seems only fair to observe that the most important legislative output attributed to them was in very large measure the product of the Italian lead, as can readily be confirmed by examining the legislative texts dealing with the prison system and juvenile justice, which were clearly derived from Italian thinking and experience, successfully grafted onto Afghan tradition. Introduction 15
  • 14. Ten years of support to justice reform: the principal results How much was allocated between 2002 and 2010? 2002 BILATERAL CONTRIBUTIONS 2002-2010 Support to the State budget (JSRP-ARTF)* Multilateral projects Total € 9,577,803.90 € 10,000,000.00 € 61,614,570.23 € 81,192,374.13 2002 € 560,000.00 € 8,238,506.85 € 8,798,506.85 2003 € 428,698.61 € 12,500,000.00 12,928,698.61 2004 € 1,243,791.58 € 9,400,000.00 € 10,643,791.58 2005 € 1,744,510.43 € 11,244,592.00 € 12,989,102.43 2006 € 1,348,020.89 € 6,750,000.00 8,098,020.89 2007 € 1,368,239.70 € 10,500,000.00 € 11,868,239.70 2008 € 839,842.35 € 331,471.38 € 11,171,313.73 2009 € 857,049.61 € 1,150,000.00 € 2,007,049.61 2010 € 1,187,650.73 € 1,500,000.00 € 2,687,650.73 € 10,000,000.00 * Justice Sector Reform Project - Afghanistan Reconstruction Trust Fund For more details: Chapter 2 (pages 31 – 89) How have multilateral contributions been allocated? ≈14% World Bank Support to the State budget (JSRP-ARTF) ≈17% UNODC ≈7% IMG ≈1% OHCHR ≈6% UNIFEM ≈1% UNOPS ≈3% UN Office Vienna ≈1% UNICEF ≈27% IDLO ≈23% UNDP For more details: Chapter 2 (pages 31 – 89) What judicial rules and procedures have been reformed through Italian assistance? Interim Criminal Procedure Code Juvenile Justice Code Prison Code Criminal Procedure Code For more details: Chapter 2.1 (pages 38 - 45) 16 Summing up
  • 15. How many people have been trained through Italian contributions? Organization Number trained Kabul Herat Other provinces IDLO 3366 3168 198 0 ISISC 1239 270 47 922 UNDP 1873 300 250 1323 UNODC 1693 1250 0 443 UNICEF 306 306 0 0 Universities of Perugia and Tor Vergata (Rome) 17 17 0 0 UNIFEM 20 20 0 0 Total 8514 5331 495 2688 For more details: Chapter 2.2 (pages 46 – 69) Where have training courses been carried out? Training courses have been carried out in the following provinces (numbers next to names of provinces correspond to provinces’ numbers on map): Baghlan (19), Badakhshan (30), Balkh (13), Ghazni (16), Herat (1), Jowzjan (8), Kabul (22), Kapisa (29), Kunduz (18), Laghman (32), Logar (23), Nangarhar (33), Paktia (24), Parwan (20), Samangan (14), Takhar (27), Wardak (21). For more details: Chapter 2.2 (pages 46 – 69) How much infrastructure has been built through Italian contributions? Detention centers Infrastructure for other judicial institutions Constructions Renovations Constructions Renovations Kabul 3 2 1 7 Herat 0 6 4 4 Other provinces 1 5 13 19 Total 4 13 18 30 For more details: Chapter 2.3 (pages 70 – 89) Where has infrastructure been built? Training courses have been carried out in the following provinces (numbers next to names of provinces correspond to provinces’ numbers on map): Badakhshan (30), Baghlan (19), Badghis (4), Balkh (13), Daykundi (10), Faryab (5), Ghor (6), Herat (1), Jowzjan (8), Kabul (22), Kunduz (18), Nangarhar (33), Paktia (24), Parwan (20), Samangan (14), Sari Pul (9). For more details: Chapter 2.3 (pages 70 - 89) Summing up 17
  • 16. 1. Historical phases of justice sector reform 1.1 The lead phase (2003-2005) 1.2 The key partners phase (2006-2007) 1.3 The Afghan ownership phase (2007-2009) 1.4 The transition phase (from 2010 onwards)                                
  • 17. 1.1 The lead phase (2003-2005) I n October 2001 an international coalition led by the United States entered Afghanistan and overthrew the Taliban regime. The Bonn Conference in December of that same year marked the beginning of the reconstruction process for the country. Following the 2001 Bonn Agreement1 and the ensuing Conferences in Tokyo (January 2002) and Geneva (April 2002), which set forth the path for the reconstruction of Afghan state institutions, several countries assumed the role of “lead country” for the reform of the principal sectors of the State. Supported by a comprehensive effort from the international community, Italy assumed the responsibility as lead country for justice reform in Afghanistan2. This engagement of Italy involved, on the one hand, providing financial support to the sector and, on the other, serving in the role of country of reference for other donor countries who wished to contribute, while at the same time bringing together Afghan institutions and other parties. On the basis of this assignment, a phased approach (in the sense of a work in progress) to the so-called “Justice Program” was carried out: a multi-year program with the objective of re-establishing a judicial administration able to respond effectively to the widespread demand for justice in the country, which respected international human rights standards and was in conformity with the criteria subsequently established in the 2004 Constitution, and which was non-conflictual in its relations with the various informal justice systems that were in place throughout the country. Based on this mandate, the Italian Justice Program Office (IJPO) was established; its operation at the initial stage took place largely within the framework of the Justice Sector Consultative Group, one of 16 consultative groups Hamid Karzai, nominated Interim President at the 2001 Bonn Conference and subsequently confirmed in the 2004 elections; © Italian Ministry of Foreign Affairs created following the adoption of the National Development Framework in 2002. Following the Bonn Agreement, the Interim Administration established a Judicial Commission, subsequently dissolved and re-established as the Judicial Reform Commission, and an Afghanistan Independent Human Rights Commission. After an initial review of the conditions of judicial administration and of the legal foundations of the Afghan justice system, the Italian Justice Program Office, formally established in 2002 and operational since February 2003 under the direction of Giuseppe di Gennaro, Special Adviser for the reconstruction of the Afghan justice system, identified several priority areas on which to focus its efforts. With annual contributions beginning in 20023, Italy concentrated its own activities, carried out primarily through multilateral programs of the UN and other international organizations, on the following three sectors: legal training for employees in the justice sector, assistance to judicial institutions in the area of infrastructure, and legislative reform. In terms of this last element, of particular importance was the Interim Criminal Procedure Code which has been in use since 2004. During the course of the lead phase, other international actors contributed in a supporting manner to the sector, including the United States, Canada, Germany, France and the Netherlands, carrying out, in parallel or supplementing Italian-financed initiatives, training activities and infrastructure construction. From the beginning an important role in this process was also performed by the military, through the activities of Provincial Reconstruction Teams (PRT) which by means of their professional support, of both a civil and military nature, contributed to reconstruction activities at the local level. 1 Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions. 2 The Tokyo Conference in January 2002 and the ensuing Geneva donors conference in April of that year entrusted the reform of the entire security sector in Afghanistan to five lead countries that were members of the G8: armed forces to the United States, police to Germany, justice to Italy, fight against drug trafficking to the UK, and demobilization and reintegration of ex-combatants to Japan. 3 Annual contributions 2002-2010: € 8,798,506.85 (2002); € 12,928,698.61 (2003); € 10,643,791.58 (2004); € 12,989,102.43 (2005); € 8,098,020.89 (2006); € 11,868,239.70 (2007); € 11,171,313.73 (2008); € 2,007,049.61 (2009); € 2,687,650.73 (2010). 20 1.1 Historical phases of justice sector reform - The lead phase (2003-2005)
  • 18. An important step in the process of Afghan judicial sector reform was the adoption in October 2005 of the document Justice for All, which presented an initial medium-term development strategy for the justice system prepared by the Afghan Government in collaboration with the Ministry of Justice, the Attorney General’s Office and the Supreme Court. This document, which for the first time established concrete objectives for the reform, timetables and requests for financing, remained the principal reference for the action of the international community in the sector until the adoption following the 2006 London Conference of the Afghanistan Compact and the Interim Afghanistan National Development Strategy (i-ANDS). T he December 2001 Bonn Conference, convened in response to the formal invitation contained in United Nations Security Council Resolution 1378 of 14 November 2001, addressed the urgent necessity to establish an Interim Afghan Authority and identify an interim president to lead the country, disrupted and undermined by 23 years of war, in the reconstruction of its institutional framework and towards democratic elections. At this stage the support of the international community was seen to be of fundamental importance, and its intervention conceived according to a “cluster” approach, in which the “lead” country identified for a particular sector was given the dominant role in terms of both providing financial support to the sector and serving as the country of reference for other donors and Afghan institutions. The Bonn Agreement of 5 December 2001, the first in a series of agreements on Afghan reconstruction, approved the formation of an interim government to manage the transition process. In specific terms, the agreement set 22 December 2001 as the date for the official transfer of power to the Interim Authority consisting of “an Interim Administration presided over by a Chairman, a Special Independent Commission for the Convening of the Emergency Loya Jirga, and a Supreme Court of Afghanistan, as well as such other courts as may be established by the Interim Administration.” The 2001 agreement gave to the Interim Authority sovereignty over the Afghan state, the representation of Afghanistan in its external relations, and the right to occupy its seat at the United Nations. It also provided for the convening of an Emergency Loya Jirga (Grand Council) within six months of the establishment of the Interim Authority, having the authority to decide on a Transitional Authority “to lead Afghanistan until such time as a fully representative government can be elected through free and fair elections to be held no later than two years from the date of the convening of the Emergency Loya Jirga.” Hamid Karzai was elected Interim President of the Transitional Authority in June 2002 and was confirmed in this position in the elections of 2004. In May 2002 the Interim Administration established the Judicial Commission, charged with the responsibility for reconstructing the judicial system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions. The Commission was subsequently dissolved, re-established in November 2002 as the Judicial Reform Commission, and finally abolished in 2005 in conjunction with the so-called Bonn process. Until the adoption of the new Constitution, the transitional justice system consisted of the 1964 Constitution along with the laws and regulations approved to that point, so long as they did not conflict with the Constitution or with the Agreements themselves and were in line with the international obligations assumed by Afghanistan. With the approval of the new Constitution by the Loya Jirga, and its promulgation by President Karzai on 26 January 2004, Afghanistan became an Islamic Republic. The judicial system was restructured, and since 2004 has consisted of a Supreme Court, a Court of Appeals, primary courts, an Attorney General’s Office and a Ministry of Justice. 1.1 Historical phases of justiceriformareform - The lead phase (2003-2005) Fasi storiche della sector del settore giudiziario 21
  • 19. 1.2 The key partners phase (2006-2007) W ith the aim of making Afghan institutions more responsible, as part of the overall objective of strengthening institutional and leadership capacity of the newlyconstituted government, the 2006 London Conference handed over to the Afghan authorities the national reconstruction effort, including the justice sector component. The Government assumed leadership of the overall five-year reform program, outlined in the Afghanistan Compact, and also presented the Interim National Development Strategy (i-ANDS). This in turn established guidelines for the achievement of a global Afghan reconstruction strategy, which in the case of the justice sector was based on the document Justice for All (approved in 2005) and on the structure established following the 2006 London Conference. In accordance with this structure, the former lead nations became key partners, thereby giving up their role of leading the reform process to enter into a new partnership with the sovereign national authorities, while continuing to provide the technical assistance necessary for reconstruction. Despite the establishment – by means of i-ANDS – of a future assistance plan for justice sector reform, the gaps remained apparent, and the reform of the sector continued to be implemented in a disorganized mode through numerous projects that were not always carried out in conformity with the orientations established for the sector. The need for better coordination among donors led to the establishment, in the first instance, of the International Coordination Group for Justice Reform under the joint leadership of UNAMA and the Italian representative and, subsequently, a sub-working group, the International Coordination for Legal Training, both having the role of overseeing the various aid programs 22 carried out by international agencies and organizations. Beginning with the London Conference, Italy became a key partner and its role was correspondingly modified. This stage coincided with the reorganization of management skills within the national assistance program for justice sector reform in Afghanistan. While from 2003 until 2006 on-site management of sector activities had been carried out by an ad hoc structure, the Italian Justice Program Office (IJPO), from October 2006 until December 2007 the responsibilities of the IJPO were delegated to the diplomatic representation in Kabul. From January 2008 onwards these responsibilities were assumed by the newly-established Local Technical Unit of the Italian Directorate General for Development Cooperation of the Ministry of Foreign Affairs, among whose responsibilities was the “Justice Program” which thereby became one of the numerous sectoral development programs and was provided with a team of experts and a budget managed on site. At this stage, the Italian operation in the justice sector was characterized by technical support of legislative reform, and support for strengthening judicial institutions through rehabilitation and reconstruction of justice system infrastructure (courts, prisons, etc.), training courses for judges, prosecutors and managerial staff of the Ministry of Justice, and the supply of materials. In cooperation with the Afghan Government and the UN mission (United Nations Assistance Mission in Afghanistan, UNAMA), Italy has actively participated in the working groups provided for in i-ANDS, and in the coordination of the other international actors operating in the justice sector. 1.2 Historical phases of justice sector reform - The key partners phase (2006-2007)
  • 20. Ban Ki-moon, Secretary-General of the United Nations and Hamid Karzai, President of Afghanistan, at the 2010 Kabul Conference which marked the end of the process initiated at the 2006 London Conference. © Eric Kanalstein, UNAMA T he London Conference of January 2006 led to important developments for all of the sectors of intervention in the country, initiating a process of gradual reinforcement of Afghan institutions which would culminate in the adoption of the Afghanistan National Development Strategy (ANDS) in 2008 and demonstrate the Government’s ability to prepare a programmatic vision of the needs, aims and priorities for a stable and democratic economic and social development. At this stage, it was in fact the Government, with the support of the key partners, that on its own initiative provided the orientation and guidelines in each of the individual sectors. The signing of the Afghanistan Compact – a political agreement between the Government of Afghanistan and the international community that identified three pillars of activity (I Security; II Governance, Rule of Law and Human Rights; III Economic and Social Development) and was subsequently incorporated in the Interim Afghanistan National Development Strategy (i-ANDS) – also marked the beginning of the reorganization of the justice sector. The Afghanistan Compact provided for the achievement of the following four benchmarks by the end of 2010: 1. putting in place the legal framework (civil, criminal and commercial law) required under the Constitution, and its distribution to all judicial and legislative institutions; 2. functioning institutions of justice to be fully operational in each province of Afghanistan, with the average time to resolve contract disputes to be reduced to the largest possible extent; 3. the full implementation of a review and reform of oversight procedures relating to corruption, lack of due process and miscarriage of justice, in order to strengthen the professionalism, credibility and integrity of the key institutions of the justice system; The Afghanistan Compact also established the Justice Coordination and Monitoring Board (JCMB), for overall strategic coordination of the implementation of the reform process set forth in the Compact, and for resolving problems arising from its implementation. The new planning for the justice system introduced via i-ANDS provided for the establishment of a coordinating group on the rule of law and human rights, to be presided by the Ministry of Justice with the participation of UNAMA and Italy in its role as a key partner on governance. It included various technical working groups, within the framework of which the intervention of the international community was outlined: Law Reform; Justice Physical Infrastructure; Justice Institutions and Judicial Reform; Legal Education and Training; Access to Justice and Legal Aid; Corrections; as well as an Advisory Group on Women and Children in Justice. 4. the rehabilitation of judicial infrastructure, including the provision of separate prison facilities for women and juveniles. 1.2 Historical phases of justice sector reform - The key partners phase (2006-2007) Fasi storiche della riforma del settore giudiziario 23
  • 21. 1.3 The Afghan ownership phase (2007-2009) T he change of strategy established at the 2006 London Conference was strengthened and more fully articulated at the Conference on the Rule of Law in Afghanistan, organized by Italy and held in Rome at the Ministry of Foreign Affairs on 2 and 3 July 2007. From a reconstruction essentially focused on the provision of technical and economic assistance through bilateral programs, the approach became more inclusive and multilateral, with the objective of ensuring Afghan ownership of the reconstruction process. The beginning of this new stage was favorably received by the international community and by the numerous Afghan leaders who had come to Rome. 24 The Rome Conference, in addition to obtaining donor commitments for an additional $360 million to support high priority, short-term projects presented by the judicial institutions themselves, agreed that the reform of the justice sector and the coordinated support by the international community should be implemented within the framework of a Justice Sector Strategy to be developed as part of the ANDS, and through a National Justice Program (NJP) to include short, medium, and long-term implementation plans. The Conference also provided for the establishment of a Provincial Justice Coordination Mechanism (PJCM) with the support of the UN Assistance Mission for Afghanistan (UNAMA), to which Italy provides financial support. 1.3 Historical phases of justice sector reform - The Afghan ownership phase (2007-2009)
  • 22. Participants at the 2007 Rome Conference. © Italian Ministry of Foreign Affairs The following year the Afghan Government adopted a framework program, the National Justice Program, through which the new five-year National Justice Sector Strategy (NJSS) was to be implemented. The National Justice Program has, on the one hand, the function of directing bilateral and multilateral financing and, on the other, the operational management of the Afghanistan Reconstruction Trust Fund (ARTF). This fund is supported by contributions from 27 donors and administered by the World Bank. It also finances the Justice Sector Reform Project (JSRP) with an initial contribution of over $27 million (for the period 2008-2011), of which Italy (together with the EU, UK and Norway) is the principal donor country. The establishment of the JSRP, in addition to marking an important course change in the approach of the international actors towards reconstruction of the sector – it is now the Afghan authorities who are directly responsible for managing individual reform activities – represents the final step in a path that began with the preparation of the Rome Conference on the Rule of Law in Afghanistan. It also marked a definitive change in approach for Italy, whose role has moved from that of being the country of reference for the reconstruction of the sector, to becoming the largest financial supporter of the JSRP. 1.3 Historical phasesstoriche della riforma - The Afghan ownership phase (2007-2009) Fasi of justice sector reform del settore giudiziario 25
  • 23. Afghan President Hamid Karzai, Italian Minister of Foreign Affairs Massimo D’Alema and Secretary-General of the United Nations Ban Ki-moon at the Rome Conference. © Italian Ministry of Foreign Affairs T he Rome Conference on the Rule of Law in Afghanistan held on 2 and 3 July 2007, presided by the Afghan Government, UNAMA and Italy, and with the participation of President Karzai and delegations from the member countries of the Joint Coordination and Monitoring Board (JCMB), set as its objective the reaffirmation of the political commitment to reform the justice sector and establish the rule of law in Afghanistan, and the development of guidelines for a coordinated reform strategy. The Chairs’ Conclusions reaffirmed “the crucial importance of the reform of justice and the implementation of the rule of law for the reconstruction of Afghanistan, recognizing that without justice and the rule of law no sustainable security, stabilization, economic development and human rights can be achieved”. Following the Conference on the Rule of Law in Afghanistan, the decision was taken to finalize the National Justice Sector Strategy (NJSS), within the framework of the ANDS, by combining the three ministerial strategies that had been presented in Rome (by the Supreme Court, the Attorney General’s Office and the Ministry of Justice) into a single document having broader goals and setting forth a clear road map for justice sector reform. In specific terms, the document identified three overall objectives of Afghan justice system reform: improved institutional capacity to deliver sustainable justice services (Supreme Court, Attorney General’s Office and the Ministry of Justice); improved coordination and integration within the justice system and with other state institutions; and the improved quality of justice. These objectives were specified in sub-programs 26 which, in turn, contained individual development strategies, expected results and potential problems. The overall objectives of the strategy provided the orientation for the National Justice Program (NJP), which translates into operational terms the individual sub-programs contained within the NJSS and includes the relevant reform activities. These activities are being implemented through individual bilateral projects of organizations and donor countries, and by a Justice Sector Reform Project (JSRP) directed and carried out by Afghan institutions and financed through the Afghanistan Reconstruction Trust Fund (ARTF). The ARTF, established in 2002, is managed by the World Bank and supported by contributions from 27 donors. what from the beginning had been seen to be the crucial element in the management of the projects: the coordination of the various initiatives undertaken by the different stakeholders, Afghan and foreign, in order to regularly monitor results, coordinate activities and avoid duplications of interventions, in eight sectors (I Security, II Governance, Rule of Law and Human Rights, III Infrastructure and Natural Resources, IV Education, Culture, Media and Sport, V Health and Nutrition, VI Agriculture and Rural Development, VII Social Protection, VIII Economic Governance and Private Sector Development). These overall sectors are in turn further subdivided into sub-sectors covering all aspects of the social and economic life of the country. The Rome Conference, following up on the change in strategy initiated at the 2006 London Conference, enunciated and gave operational effect to the concept of Afghan ownership of the reconstruction process by, for the first time, entrusting the concrete management of the budget to national institutions. The phase of Afghan ownership reached its culminating point with the adoption, at the 2008 Paris Conference, of the Afghanistan National Development Strategy (ANDS), thus marking the definitive transition from the post-Bonn Administration to a duly elected Government and Parliament in the full exercise of their functions. For the second sector – Governance, Rule of Law and Human Rights – the activities of the ANDS have been subdivided among different thematic working groups. The group in charge of the justice sector is that of the Rule of Law, presided over by the Ministry of Justice, with Italy and UNAMA as focal points at the initial stage. The work is subdivided among various sub-working groups according to the specific sectors of interventions, i.e., prisons, infrastructure, legal assistance and access to justice, legislative reform, institutional reform, as well as the groups dealing with cross-cutting issues. The ANDS represents the principal frame of reference for all reconstruction activities in Afghanistan, serving as the point of contact for the various international parties present in the country, and between these and the national authorities. The ANDS was given 1.3 Historical phases of justice sector reform - The Afghan ownership phase (2007-2009)
  • 24. The eight pillars of the Afghanistan National Development Strategy (ANDS) SECURITY Governance SOCIAL AND ECONOMIC DEVELOPMENT Pillar Pillar Pillar Pillar Pillar Pillar Education & Culture Health & Nutrition Agriculture Rural Development Social Protection Economic Governance PSD Security 1 Pillar Infrastructure Natural Resources Pillar Good Governance w 2 3 4 5 6 7 8 Source: Afghanistan National Development Strategy (ANDS). 1.3 Historical phasesstoriche della riforma - The Afghan ownership phase (2007-2009) Fasi of justice sector reform del settore giudiziario 27
  • 25. 1.4 The transition phase (from 2010 onwards) T he adoption of a National Justice Sector Strategy (NJSS) and the National Justice Program (NJP) as the principal results of the 2007 Rome Conference, along with the definitive approval of ANDS in 2008, were milestones in the Afghan reconstruction process, representing solid and shared institutional support showing the way forward for all of the actors involved. One consequence was the strengthening of the project management process in the justice sector on the part of Afghan institutions by means of the core budget. Nevertheless, a number of donors continued to organize reconstruction projects through bilateral channels. The two international conferences that took place in 2009, in Moscow and The Hague, represented further stages in the process of consolidation of the international perspective for the strengthening of Afghan institutions. In addition, the approval, initially by the United States and subsequently confirmed at the November 2010 Lisbon Nato summit, of an exit strategy for the withdrawal of international troops from Afghanistan by 2014 marked the beginning of a transition phase aimed at returning the management of security in all of the country’s provinces to local forces within a relatively short period of time. The 2010 London Conference represented a turning point towards the completion of the progressive and definitive transfer of responsibility for Afghanistan to a democraticallyelected government, legitimized and reinforced by popular vote. The objective of the London Conference was, in fact, that of defining and approving a plan, along with a credible road map, for a handover in a clearly defined time period to the Afghan Government of the responsibility for security in the country, avoiding a return of the Taliban and guaranteeing peace and stability for a democratic Afghanistan. The 28 conference also provided the opportunity to bring to the attention of the international community and donors certain needs that up to that point had not been considered priority ones, such as anti-corruption and informal justice. The commitment of the Afghan Government, formalized for the first time in London, to reach objectives in a clearly defined time period, represented a strategy that was subsequently renewed and widened at the Kabul Conference in July of that same year. In addition to being the first conference at ministerial level organized by the Afghan authorities, thereby demonstrating the autonomous role henceforth to be assigned to the Government, the Conference held in the Afghan capital marked the decisive step towards the definitive Afghanization of the country, replacing the previous concept of “coordination” on the part of the international community with that of “alignment”. The process initiated at Kabul was, in fact, that of Government full ownership through the strengthening and extension of the so-called clusters and the National Priority Programs (NPP) that had already been presented in London. These quick impact programs represented, in contrast with those approved by the Rome Conference in 2007 which had essentially consisted of requests on the part of institutions to donors, objectives that the Afghan Government set for itself and which individual institutions are to achieve according to a pre-established calendar. At this stage Italy oriented its activities towards priority geographic areas (Herat and the western region), with particular emphasis given to interventions in the sectors of free legal aid for the indigent, extrajudicial resolution of conflicts (through its support of the Ministry of Justice’s Huquq Department), gender justice and specialist postuniversity legal training (through the Independent National Legal Training Center). 1.4 Historical phases of justice sector reform - The transition phase (from 2010 onwards)
  • 26. The participants at the 2010 Kabul Conference. ©Eric Kanalstein, UNAMA “T his conference offers us the opportunity to discuss the way forward toward an Afghan led, Afghan owned initiative that ensures peace and stability in Afghanistan and its surroundings. Today, I will not talk about our collective achievements, which have been considerable and numerous over the past several years. I rather would like to take the opportunity to contemplate on a series of issues that are presently of great significance to the people of Afghanistan as well as to the international community engaged in Afghanistan.” With these words Afghan President Karzai opened the London Conference, which marked the definitive handover of full ownership of the reconstruction process to the Afghan Government, in a perspective of transition towards military disengagement of the international community by 2014. Afghan full ownership took form during the Kabul Conference and was subsequently affirmed through the establishment of clusters, ministerial groups formed to improve coordination and project design in five sectors in line with ANDS, specifically: governance and rule of law; agriculture and rural development; human resource development; infrastructure and economic development; and security. Within such clusters, the Government has taken on clearcut commitments with specific timetables in terms of individual National Priority Programs (NPPs). Activities in the “governance and rule of law” sector are being implemented through six programs of the NPP, the objective being to “strengthen democratic processes and institutions, human rights, the rule of law, delivery of public services and government accountability”. Three of these national programs, the National Program for Justice for All, the National Transparency and Accountability Program and the Afghanistan Program for Human Rights and Civic Responsibilities, specify the activities to be carried out in the justice sector. The first concerns all those elements of the legal system that are particularly relevant to the perception formed by citizens of the legal system and of the rule of law, through legal aid for the indigent, legislative review, simplification of state court operations and enhancing the collaboration between the formal and informal justice systems. The National Transparency and Accountability Program aims to support these activities by promoting prevention, monitoring and enforcement activities to deal with corruption and bribery, both within governing institutions and in relations between public/private Afghan entities and international institutions. The Afghanistan Program for Human Rights and Civic Responsibilities, for its part, responds to the challenges presented by the heritages of the most extreme traditions and by the limited capacity for guaranteeing the fundamental liberties of the Afghan population – through strengthening Afghan national institutions for the protection of human rights, and increasing citizen awareness of human rights and responsibilities by means of civic education. Also at the London Conference, two very important and timely subjects were confronted for the first time: corruption, a widespread phenomenon throughout Afghan institutions, and informal justice. The system of formal justice, for a wide variety of reasons ranging from the lack of confidence on the part of the population to structural deficiencies and lack of presence of the judicial institutions, above all in peripheral areas, is even now estimated to account for only about 25 percent of legal cases settled throughout Afghanistan. The large majority of cases are still resolved through the so-called informal justice system, carried out by qadis, jirgas and shuras, councils made up of local elders. Informal justice, although not formally recognized in the Constitution, represents a very widespread phenomenon throughout Afghanistan whose validity and compatibility with national legislation, above all in terms of respect for human rights, remains highly questionable, and it continues to represent one of the unresolved problems of Afghan justice system reform. 1.4 Historical phasesstoriche della riforma - Thesettore giudiziario 2010 onwards) Fasi of justice sector reform del transition phase (from 29
  • 27. 2. Areas of intervention 2.1 Assistance for reform of judicial rules and procedures          2.1.1 The lead phase and the Criminal Procedure Code 2.1.2 The key partners phase and laws promoted through the Criminal Law Reform Working Group 2.1.3 Laws promoted through other working groups 2.2 Training of judicial sector personnel and strengthening of judicial institutions          2.2.1 Legal training and assistance to judicial institutions 2.2.2 Free legal aid for the indigent 2.2.3 Juvenile justice 2.2.4 Gender justice 2.3 Assistance to judicial institutions in the field of infrastructure          2.3.1 Prison infrastructure 2.3.2 Infrastructure for other judicial institutions
  • 28. I n the post-war period, Afghanistan found itself confronting enormous challenges and changes: absence of an institutional and legislative framework, devastated human and infrastructural resources, millions of citizens who were refugees in neighboring countries and were embarking on the uncertain path of return, and the continuation of the insurgency in its various manifestations in different parts of the country4. From 2001 to the present time, Italy has provided direct support to the efforts of the international community aimed at the institutional and economic reconstruction of Afghanistan, with a major contribution in terms of both human and financial resources, having invested altogether more than 500 million euros in aid for the country’s reconstruction. Since 2002, the Italian intervention in support of the justice system, traditionally one of the most important areas of the Italian contribution towards Afghan reconstruction, has focused on the following three sectors: legislative reform, judicial training for workers in the sector, and logistical and infrastructural assistance to judicial institutions. The priority problems in the justice sector that were at the forefront of the international community’s intervention, initially under the guidance of Italy in its role as lead nation, ranged from 32 the absence of a complete and organically structured legislative and infrastructural framework, to the total lack on the part of judicial institutions of both operative instruments and the minimum level of human resources necessary for starting the process of reconstructing the presence of the rule of law over the entire Afghan territory. During the initial years, the Italian interventions dealt primarily with the reform of the nation’s laws and legal system, through Italy’s support of the Judicial Reform Commission and by its participation in working groups, notably those established within the framework of the Afghanistan National Development Strategy (ANDS), whose task was to provide specialist legal assistance directed towards legislative reform of judicial rules and regulations. These activities were complemented, over the course of the years, by infrastructural interventions aimed at reconstruction and renovation of facilities and training, initially concentrated in the capital and adjoining areas. The necessity to extend the rule of law beyond the capital, and thus to ensure that formal justice was also available to people resident in the more remote parts of the country, impelled the international community, and Italy in the first instance, to extend the “outreach” of its interventions. After 2.1 Areas of intervention
  • 29. the first years of organization and reconstruction of the institutional framework, Italian activity in the justice sector has therefore concentrated on training activities for personnel in judicial institutions (Ministry of Justice, Attorney General’s Office and Supreme Court) as well as on the construction and renovation of judicial infrastructure in various provinces and districts in the country. Beginning in 2009-2010 the principal focus of such activities was on the western region, and in particular Herat province, where a steady Italian military and civil presence provided a favorable opportunity for the development of a unified strategy aimed at maximizing the efficient use of the resources deployed by the Italian Government for supporting reconstruction efforts in various priority sectors of intervention in this province. Beginning in 2008, with the establishment of the Local Technical Unit of Italian Development Cooperation, the various projects illustrated in the following chapters, which concern initiatives carried out through both bilateral and multilateral channels, the latter through UN agencies and other international organizations, were directly monitored on site by this unit. The objective of the activities carried out has been, on the one hand, to contribute to the re-establishment of a justice system consistent with the criteria of the new Constitution enacted in 2004, with international conventions subscribed to by Afghanistan, and in particular with treaties regarding the protection of human rights. On the other hand, the aim has also been to re-establish the presence of the rule of law in Afghanistan and to ensure efficiency and transparency in the provision of services by judicial institutions throughout the whole country, guaranteeing access to the justice system, in particular, to the most vulnerable elements of the population. Overall, Italy has invested to date more than 80 million euros in support of the justice sector, of which approximately 62 million have been disbursed through multilateral programs carried out by the principal UN agencies and organizations present in Afghanistan5, 10 million have been included in the budget (through the contribution to the Justice Sector Reform Project, funded multilaterally through the Afghan Reconstruction Trust Fund administered by the World Bank, which provides support to the Afghan national budget), while about 9 million have been used to carry out directlymanaged bilateral interventions. 4 Anti-government elements (AGE). 5 IDLO, UNDP, UNODC, UNOPS, UNICEF, UNIFEM, World Bank, IMG, OHCHR. 2.1 Areas of intervention Fasi storiche della riforma del settore giudiziario 33
  • 30. Italian contributions to the justice sector between 2002 and 2010. 2002 2002-2010 BILATERAL CONTRIBUTIONS Support to the State budget (JSRP-ARTF)* Multilateral projects Total € 9,577,803.90 € 10,000,000.00 € 61,614,570.23 € 81,192,374.13 2002 € 560,000.00 € 8,238,506.85 € 8,798,506.85 2003 € 428,698.61 € 12,500,000.00 12,928,698.61 2004 € 1,243,791.58 € 9,400,000.00 € 10,643,791.58 2005 € 1,744,510.43 € 11,244,592.00 € 12,989,102.43 2006 € 1,348,020.89 € 6,750,000.00 8,098,020.89 2007 € 1,368,239.70 € 10,500,000.00 € 11,868,239.70 2008 € 839,842.35 € 331,471.38 € 11,171,313.73 2009 € 857,049.61 € 10,000,000.00 € 1,150,000.00 € 2,007,049.61 2010 € 1,187,650.73 € 1,500,000.00 € 2,687,650.73 * Justice Sector Reform Project - Afghanistan Reconstruction Trust Fund 12% Bilateral contributions 76% Multilateral projects 12% Support to the State budget (JSRP-ARTF) 34 2.1 Areas of intervention
  • 31. More than 40 per cent of the multilateral contributions6 have served to finance reconstruction and renovation of judicial infrastructure, with the remainder being used for activities relating to the preparation of legal texts, institutional strengthening and training7. Multilateral contributions for infrastructure, and for legislative reform, training and institutional strengthening, between 2002 and 2010 8. 2002 Legislative reform, training and Infrastructure institutional strengthening Total 2002-2010 € 41,619,978.23 € 29,994,592.00 € 71,614,570.23 2002 € 7,288,506.85 € 950,000.00 € 7,288,506.85 2003 € 9,950,000.00 € 2,550,000.00 € 9,950,000.00 2004 € 2,100,000.00 € 7,300,000.00 € 2,100,000.00 2005 € 5,000,000.00 € 6,244,592.00 € 5,000,000.00 2006 € 1,300,000.00 € 5,450,000.00 € 1,300,000.00 2007 € 8,000,000.00 € 2,500,000.00 € 8,000,000.00 2008 € 5,331,471.38 € 5,000,000.00 € 5,331,471.38 2009 € 1,150,000.00 € 1,150,000.00 2010 € 1,500,000.00 € 1,500,00.00 58% Legislative reform, training and institutional strengthening 42% Infrastructure 6 Including 10 million included in the State’s budget through the contribution to the Justice Sector Reform Project, funded multilaterally through the Afghan Reconstruction Trust Fund administered by the World Bank. 7 The majority of the multilateral projects involve activities that can be ascribed to more than one sector. The reported division among sectors is therefore based on estimates. 8 See note 7. 2.1 Areas of intervention 35
  • 32. Multilateral contributions to the justice sector between 2002 and 2010, by organization. 2002 2002 - 2010 IDLO € 19,050,000.00 UNDP € 16,887,333.60 UNODC € 12,050,000.00 UNOPS € 944,592.00 UNICEF € 700,000.00 UNIFEM € 4,582,644.63 World Bank - Support to the State budget (JSRP - ARTF) € 10,000,000.00 IMG € 5,000,000.00 OHCHR € 400,000.00 UN office Vienna € 2,000,000.00 € 71,614,570.23 2002 2003 € 600,000.00 € 1,500,000.00 € 3,805,862.22 € 7,750,000.00 € 950,000.00 € 550,000.00 2004 € 2,000,000.00 2005 € 5,000,000.00 2006 € 300,000.00 2007 € 7,000,000.00 € 5,000,000.00 € 7,300,000.00 € 300,000.00 2008 2009 2010 € 1,150,000.00 € 1,500,000.00 € 1,150,000.00 € 1,500,000.00 € 331,471.38 € 450,000.00 € 2,500,000.00 € 1,000,000.00 € 1,000,000.00 € 944,592.00 € 700,000.00 € 2,582,644.63 € 10,000,000.00 € 5,000,000.00 € 300,000.00 € 100,000.00 € 2,000,000.00 € 8,238,506.85 € 12,500,000.00 ≈14% World Bank Support to the State budget (JSRP-ARTF) ≈17% UNODC 36 € 9,400,000.00 € 11,244,592.00 € 6,750,000.00 € 10,500,000.00 € 10,331,471.38 ≈7% IMG ≈1% OHCHR ≈6% UNIFEM ≈1% UNOPS ≈3% UN Office Vienna ≈1% UNICEF ≈27% IDLO ≈23% UNDP 2.1 Areas of intervention
  • 33. The Herat province A mong the provinces of Afghanistan, Herat stands out for its historic, commercial and strategic importance, and for being the cradle of Dari language culture and literature in the country. It is a region rich in natural resources, including granite and valuable minerals, and boasts a thriving agricultural sector (producing saffron, fruits and vegetables), a dynamic sector specialized in artisanal products (Persian tapestries, textiles, cashmere) and a promising infant industry. Since ancient times Herat, which is located on the “Silk Road”, has also been a commercial crossroads between Iran and Turkmenistan. In terms of security, the province is relatively stable, although anti-government groups and anti-coalition militias continue to operate there. Additional problems are presented by unmarked mine fields and the major impact of drug trafficking, the latter being an important source of income for the local population. The Emergency Program for the most vulnerable elements of the population in Herat province and adjoining areas was initiated through the creation of a Development Cooperation Office in Herat in April 2005. The headquarters for the Office was initially maintained inside the civil-military compound of the Provincial Reconstruction Team (PRT), which is under Italian command. Later, in 2009, an autonomous and independent headquarters was set up outside the PRT compound. The emergency activities carried out by Italian Development Cooperation focused initially on assistance to the most vulnerable elements: women, children, Afghan refugees who had returned from Iran, and the disabled. The activities currently being carried out by Italian Development Cooperation in Herat cover a wide range of sectors including health, agriculture, infrastructure, microcredit, women’s entrepreneurship, the private sector, support to provincial public administration (“governance”) and, of course, the justice sector. The activities in this last sector have been directed principally towards: 1. training personnel of the provincial judicial institutions, in particular those from the Attorney General’s Office and the Ministry of Justice, in order to strengthen these institutions’ operational capacity; 2. supporting organizations responsible for providing legal assistance services to the most vulnerable elements of the population; 3. providing legal training at the university and postuniversity levels. Herat province today represents the operational focus of Italian Development Cooperation in the western part of the country, where the majority of the development initiatives financed by the Italian Government have been concentrated. Provincial reconstruction team (PRT) Italy is present militarily in Herat province as part of the Nato/ ISAF mission: in this context Italy manages the Regional Command West (RC-W) and directs the Provincial Reconstruction Team (PRT) in Herat, where approximately 1,400 Italian soldiers are operating. This latter element is also contributing to the realization of activities benefiting the local population, primarily in the infrastructure sector. Rule of Law activities implemented by PRT in HERAT Year Infrastructure Place 2006 Construction of preventive detention center Injil District 2006 Construction of preventive detention center Chuni Gawalian neighborhood 2007 Construction of Juvenile Rehabilitation Center Herat 2007 Construction within the prison in Herat of a detoxification center for detainees who are drug addicts Herat 2008 Construction of women’s section of the prison in Herat Herat 2009 Putting in place new security system for the prison in Herat Herat 2009 Construction of a Visitors and Training Center in the prison in Herat Herat 2010 Installation of electrical and water systems in the building of the Attorney General’s Office Herat 2010 Renovation of the men’s and women’s bathrooms in the Juvenile Rehabilitation Center Herat 2010 Renovation of the outer wall and playground of the Juvenile Rehabilitation Center Herat 2.1 Areas of intervention 37
  • 34. 2.1 Assistance for reform of judicial rules and procedures T he first steps towards the formation of a state based on the rule of law took place during the reigns of Amir Dost Mohammad Khan and his son Sher Ali Khan (1826-1879). The introduction of an organized and efficient system, however, had to wait for the reign of Amir Abdur Rahman Khan (1880-1901). Through the centralization of the state structure and the implementation of a series of secular rules inspired by Islamic law, the Amir sought to establish a uniform justice system, with courts and judges nominated by the central authority, and with the issuing of binding decrees. The enormous production of rules and laws, and the associated powers of enforcement, were not accompanied, however, by an equivalent production of manuals and interpretive material. Moreover, although strongly implanted in the major urban centers, the formal justice sector never reached the countryside, which continued to be regulated, with regard to both civil and criminal matters, through councils of village elders. The creation of a centralized judicial bureaucracy inspired by Islamic law contributed not only to the Islamization of the country but represented the first attempt to impose a monarchy and a unified legal system in Afghanistan. The efforts of Amir Abdur Rahman Khan were not successful, however, in eliminating the presence throughout the country of an informal system of justice based on tradition and custom, and administered by village elders. It was not until the coming to power of Amir Amanullah Khan in 1919 that a real reform process characterized by a codified and structured system was initiated. In 1923 Afghanistan was given its first Constitution which, among other things, established an independent judiciary and 38 severely limited the scope of the informal justice system. In 1925 the first criminal code, of marked religious influence, was introduced and the Amir began a major program of educating Muslim scholars (ulema) on positive law. The drastic reduction of customary powers of the different tribes led to a rebellion which, in 1929, deposed Amanullah and imposed upon his successors a more moderate attitude towards the informal justice systems present in the country. Mohammad Nadir Shah was proclaimed king, and in 1931 a new Constitution was implemented that was far more flexible towards local tribes and their jurisdictional powers, and in which Islam was proclaimed to be the state religion and source of law. The legislative policy of Nadir Shah continued during the reign of his son, Mohammad Zahir, who occupied the throne from 1933 until 1973. The creation of administrative, commercial and conciliation courts in the 1930s was accompanied in 1946 by the opening of a Sharia Faculty at Kabul University, a symbol of the willingness to integrate customary jurisprudence within a coherent framework of secular law. In 1964 a new Constitution was promulgated, officializing the coexistence of secular and religious powers. It provided for equality between men and women, for the protection of private property, for the right to form political parties and for the predominance of the formal system of justice and law vis-à-vis the informal one. A substantial measure of independence was conferred upon the judicial powers, an Attorney General’s Office was created (which, however, was only formally recognized as an autonomous organ in the 1980 Constitution) and a legislative office was created within the Ministry of Justice (which continued to prepare legal texts even during the Taliban regime). 2.1 Areas of intervention - Assistance for reform of judicial rules and procedures
  • 35. The period from 1973 to 1978 was the most prolific in terms of the issuing of consolidated legal texts. In 1976 constitutional reforms were reinforced by substantial amendments to the 1925 criminal code (still in force today). Also in 1976, a law was promulgated on the jurisdiction and organization of courts in Afghanistan. The jurisdictional system was divided into two parts: on the one hand, ordinary courts (Supreme Court – with powers of a constitutional organ – the Court of Cassation, Appeals Court, provincial courts and district courts of first instance) and, on the other, specialized courts (e.g., juvenile and labor courts). In 1974 the Criminal Legal Code elaborated in 1965 was significantly revised, and in 1979 this was supplemented by a law dealing with discovery and investigation of crimes. Despite the numerous reforms to the Constitution since 1964, Islamic culture and custom continued to monopolize the exercise of justice, due in large part to the country’s high degree of illiteracy, limited means of communication and its topography. In 1973 King Zahir Shah was deposed in a coup d’état and Mohammad Daoud came to power. In 1977 Daoud issued a new constitution, proclaiming the Republic of Afghanistan and integrating religious principles into secular law. This constitution never came into effect, however, due to the 1978 coup d’état and the December 1979 Soviet invasion, which brought in its wake a socialist-oriented Constitution in 1980. Islam ceased to be the state religion and source of law, and a new, structured jurisdictional system was created that strongly reinforced the equality of the sexes. Courts on family law were entrusted to female judges who promoted rights of women in cases of divorce, and the entire legislative system was reformulated along the lines of the Soviet model. The sixth Constitution of the Afghan Republic was promulgated in 1987 by the Najibullah government. In an attempt to promote reconciliation with the armed resistance, Islam was reintroduced as the state religion and source of law, but the legislative structure and apparatus created after the Soviet invasion were left intact. With the withdrawal of the Soviet army in 1989, and the arrival of the Mujahedeen in 1992, Islamization of the country took place during a period of widespread legislative anarchy. Evidence of the inefficiency of the justice system is provided by the fact that while the 1987 Constitution was left formally in effect, the Mujahedeen radically changed the structure of the state and dismantled the rule of law, assigning the exercise of jurisdictional powers to the informal justice based on custom and tradition, this being in any event the only justice system accessible to virtually the entire citizenry of the country. In 1996 the new Taliban regime revoked all laws promulgated since 1977 and formally recognized the 1964 Constitution as being in effect. The rule of law was administered through a dual system based on the use of traditional and formal justice. However, given the lack of an independent and trained judiciary, the formal courts ended up applying the same customary rules utilized by the village councils. A large number of special courts were established for adjudicating special cases, and punishments became the means for promoting and imposing the values and system of Islamic life. A new criminal code with a strong theological imprint was prepared in 1996, although effective power resided with the police who acted arbitrarily and in accordance with the instructions of religious leaders. The national association of lawyers, created by a 1972 law, was closed in 1996, and a defense system under the control of the executive power was established in 1999 through a special law. After the collapse of the Taliban regime, the international community found itself confronting a rather uneven situation. Despite the implementation of a normative structural apparatus in the 1960s and 1970s, followed by the Soviet-style system imported in the 1980s, actual changes on the ground had been quite limited. From July 1964 until the beginning of 2002, there was no single register of laws in the country. From 1963 to 1992 an Official Gazette had been published, but a large part of the (paper) data base underlying these documents was destroyed in the 1990s. Otherwise, only very limited data survived concerning the justice system prior to the Taliban period. A 1980 study had shown that, in a country the size of France, there were 715 judges, 170 prosecutors, 162 defense attorneys, 100 public service lawyers and about 50 law professors. At least one judge was formally assigned to 220 districts, while approximately 100 other districts were not provided with courts. Faced with the omnipresence of a traditional justice system based on custom, the very limited distribution of legal texts, the absence of means of communications and the high illiteracy rate, in 2002 the international community found itself not so much in the position of having to reconstruct the country’s justice system, but rather in that of having to create a real justice system for the very first time. 2.1 Areas of intervention - Assistance for reform of judicial rules and procedures 39
  • 36. © Eric Kanalstein, UNAMA 2.1.1  The lead phase and the Criminal Procedure Code Reading the legislative history sketched in this report, and keeping in mind that average life expectancy in 2001 was 44 years, one can readily comprehend that the large majority of the Afghan population has no real conception of the importance of the rule of law. It should also be borne in mind that most civil servants, at the beginning of 2002, had a very low level of preparation, few legal professionals had a background in law, and the majority of judges came from religious schools. It was in this context that, in April 2002, Italy accepted the offer of the international community to assume the role of lead country in the reform of the justice system. The role of the Italian Government has focused on: 1) coordinating the contributions of the international community to the reform of the justice system; 2) coordinating technical contributions from the international community for establishing a rule of law; and 3) involving Afghan institutions in the justice sector reform process financed by the international community. 40 In December 2002 a conference of donor countries was held in Rome at which $30 million was allocated as initial aid for the Afghan justice system. In February 2003 a separate office of the Italian Ministry of Foreign Affairs was set up in Kabul for the reform of the justice sector (Italian Justice Program Office, IJPO) which focused its activities on legislative reform and training of Afghan civil servants. In the early stages, IJPO prepared a reform strategy for the justice system9 and carried out a compilation of previous legislation and of those Official Gazettes still in existence, as well as a survey of the structure of the judicial system and its human capital. The IJPO’s mission was facilitated in part by the detailed “legislative archaeological” work carried out by an Italian project that had been assigned to the International Development Law Organization (IDLO) in November 2001. IDLO was able to create a database containing 2,400 legislative texts in Dari and Pashto, and an additional 100 English translations of legal documents from the period 1921 to 2001. On the basis of the investigations carried out, the IJPO, in coordination with other donor countries, began to put together a code of criminal procedure which marked the steps to be followed in the pursuit of justice. 2.1 Areas of intervention - Assistance for reform of judicial rules and procedures
  • 37. These legislative efforts were accompanied by a program of training courses for legal professionals financed by Italy and carried out, initially, by IDLO for civil and commercial subjects, and ISISC (International Institute of Higher Studies in Criminal Sciences) for criminal matters. In addition, particular attention was given to relations with Afghan judicial institutions, and with the Judicial Reform Commission. The major efforts at this stage were, in any event, those directed towards preparing the code of criminal procedure, which was issued on 25 February 200410 as the “Interim Criminal Procedure Code for Courts”. The text was denoted interim since it was meant to represent an initial structure of criminal procedure, to which more fully-structured texts would later be added; however, seven years after its issuance, the text prepared under the direction of Prof. di Gennaro is still in force. During these years the Criminal Procedure Code has molded the operation of the courts, allowing them to provide a coherent response to the demand for justice on the part of the Afghan people, while establishing the basis for the creation of a new class of legal professionals. In view of its interim nature, the Criminal Procedure Code remains very thinly-structured, consisting of only 98 articles, and is based on the model of civil law codes of an accusatory nature (such as that of Italy following its 1989 reform). The code provides for the right of defense for the indigent, for rules against arbitrary detention at the preliminary investigation stage, and for the right to call and examine witnesses for both parties to the process. The need to have a light text meant that some issues were not addressed, such as time limits for preventive detention and the method of recourse against arbitrary arrests, which in practice have turned out to be relatively sensitive issues. In addition, innovative elements for Afghan culture, such as the concept of a judicial police and that of an investigating magistrate, required several years to be fully understood and put into practice. The Criminal Procedure Code was issued shortly after the promulgation of the Constitution of the Islamic Republic of Afghanistan (signed by President Karzai on 26 January 2004). The sought-after synergy between the two documents had to give way, in some cases, to the wish to give overt recognition to a role for Hanafi jurisprudence as one of the sources of legislation. In addition, the fact that the two documents were crafted contemporaneously meant that there were no specific provisions in the Constitution relating to certain principles of criminal procedure of a particularly difficult interpretive nature. This was the case, for example, for the relation between the judicial police and prosecutor in the very early stages of investigations. Apart from the essential procedural code, during this first stage of the Italian intervention an important contribution was also made to the drafting of codes for juvenile justice and prisons. The work on the Juvenile Code was initiated following a request by UNICEF to the IJPO to coordinate an ad hoc working group on the subject. The code was promulgated in March 200511 and raised the age of responsibility from seven to twelve years, while extending the applicability of the code to all those under eighteen years of age. The Juvenile Court was given the task of undertaking appropriate actions on behalf of minors in situations of risk or in need of protection. Investigations of crimes committed by minors are to be handled by specialized prosecutors, and to be based on the principle that punishment should be proportional to the age of the minor and aimed at his or her reeducation and social reintegration. The Prison Code, worked out in coordination with UNODC, was adopted in May 2005. The code introduced the distinction between prisons, and centers of temporary detention for those under investigation and subject to preventive detention. Adult prisoners under the age of 25 are to be accommodated in separate sections of detention facilities. Special attention was given to the human rights of imprisoned individuals, to limiting the use of force allowable for suppressing disobedience and disorders, to prohibiting forced labor, and to the right to be paid for labor performed during the period of detention. 9 General Report on the Judiciary in Afghanistan, June 2004. 10 Official Gazette, no. 820. 11 Official Gazette, no. 846. 2.1 Areas of intervention - Assistance for reform of judicial rules and procedures 41
  • 38. 2.1.2  The key partners phase and laws promoted through the Criminal Law Reform Working Group In 2004, when the Prison Code was being prepared, the international community promoted the creation of a Criminal Law Reform Working Group, within the framework of the UNODC program Criminal Law and Criminal Justice Capacity Building in Afghanistan, co-financed by the Italian Government. The Criminal Law Reform Working Group (CLRWG) consisted of judicial advisers from the larger donor countries and international institutions, as well as representatives from Afghan judicial institutions. Since 2004 the CLRWG has functioned continually, keeping in close contact with the legislative office of the Ministry of Justice (Taqnin) and, at the request of this office, examining the most important draft laws. The role of the CLRWG is 42 a consultative one involving both the study of proposed laws and the drafting of opinions and technical notes on questions of judicial reform of interest to the international community. In terms of the latter, the analyses of the working group are generally transmitted to members of UNAMA and diplomatic representatives and serve as the technical basis for discussions and political evaluations. A recent example of this essential function has been the technical support given to the international community for discussions concerning the planned regulation by the Ministry of Women’s Affairs of shelters for women who are victims of violence. The principal function of the CLRWG remains, however, that of providing technical and legal advice on proposed laws. Since 2005 the group has analyzed draft laws on scientific research and forensic medicine, anti-terrorism, extradition and judicial cooperation, drugs, judicial police, kidnapping and human trafficking, juvenile rehabilitation centers, elimination of violence against women, audits, structure and jurisdiction of the special courts, structure and powers of the Attorney General’s Office, anti-corruption, and shelters for women who are victims of violence. 2.1 Areas of intervention - Assistance for reform of judicial rules and procedures
  • 39. The most demanding task facing the working group has undoubtedly been that regarding the preparation of a revised Criminal Procedure Code. The Code prepared in 2004 was, in fact, considered to be only an interim document to be replaced by a more fully articulated text that would better respond to the conditions facing courts in Afghanistan. The first draft of the revised code was transmitted to the CLRWG by the legislative office of the Ministry of Justice at the beginning of 2008. During the course of that year and in the first few months of 2009, the text was discussed by international and Afghan experts and substantially revised. A special session of the CLRWG was held in Syracuse in Italy (at the International Institute of Higher Studies in Criminal Sciences) during the last week of April 2009 to discuss the principal problems arising from the preparation of the revised code, with the participation of eminent Italian and international academics, including Professor di Gennaro himself, judicial experts working in Afghanistan and other representatives from Afghan judicial institutions. The draft text of the revised Criminal Procedure Code was finally presented at a meeting held in October 2009 at UNODC headquarters in Vienna. The detailed text prepared by the CLRWG incorporated both the obligations imposed by international conventions ratified by Afghanistan as well as international standards regarding human rights, and was used by the Ministry of Justice as a technical basis for preparing a draft code that was presented to the international community at the beginning of March 2011. Italy has recognized from the very beginning the importance of the technical advice provided to the Afghan Government through the work of the CLRWG, and has been everpresent in the work of this group through the qualified judicial advisers that it has supplied. Italian specialists in law present in Afghanistan have been appreciated not only for their technical preparation but, above all, for the fact that the procedural system currently in place in Afghanistan so closely parallels that of Italy. There can be no doubt, in fact, that the numerous Anglo-Saxon consultants, whose experience is based on “common law”, find it difficult to acquire the forma mentis (“way of thinking”) required to understand a code of accusatory criminal procedure based on the fundamental dichotomy between the investigating magistrate and the judicial police. 2.1 Areas of intervention - Assistance for reform of judicial rules and procedures 43
  • 40. 2.1.3  Laws promoted through other working groups Based on the example of the Criminal Law Reform Working Group, a series of consultative and coordination groups were created in 2005 and 2006 by the principal donor countries, international organizations and the judicial components of the ISAF and Enduring Freedom missions. Among the working groups seeking to improve coordination among donors present in Afghanistan, the International Committee on Legal Training will undoubtedly be remembered. The group was composed of all the countries providing legal training, and its aim was to coordinate not only among geographical areas of intervention but also in terms of the material taught, educational tools employed and the methodology of instruction. Over time the group was able to achieve a relative uniformity in the type of instruction provided to Afghan legal workers, independent of the judicial training of the experts who were called upon to present the courses. Through the activities of the working group, the Anglo-Saxon experts, with their culture and training in common law, were able to adapt themselves to the instruction provided by experts in civil law, and to the relevant Afghan legislation. A second important coordination group was that for free legal aid for the indigent, created in 2006. Although there 44 was a department for judicial assistance to the indigent within the Ministry of Justice, a number of NGOs were active in this sector. Italy made a significant contribution to the development of one of these, the Legal Aid Organization for Afghanistan (LAOA), which was especially active in providing aid to women and children. A consultative organ in which the international community could discuss the most important questions pertaining to the relevant legislation and its practical application turned out to be essential. The working group was also the place in which donor countries were able to coordinate their efforts on common functional objectives for making legal assistance more effective, one example being the creation of a bar association. The activities of Italy and the other donor countries were thus particularly intense within those working groups created for consultative purposes and which were, in many cases, presided over by the relevant Afghan authorities. This was the case, for example, with the working group on prisons which was generally presided by the Deputy Minister of Justice. Italy, actively involved in both the construction of prison institutions and the administration of juvenile justice, as well as the promotion of alternative measures for detention, assiduously participated in this essential instrument for directing Afghan policies in the sector. Over time the working group dealt not only with the infrastructural needs of the Afghan system (still present and significant today), but also with prison policies and laws, in 2.1 Areas of intervention - Assistance for reform of judicial rules and procedures
  • 41. particular those dealing with juvenile detention centers, as well as with the identification of alternatives to detention that would be practicable within the Afghan context. UN Women (formerly UNIFEM) and the Ministry of Women’s Affairs created consultative groups on laws and infrastructure for juvenile offenders and for women who are victims of violence. In 2007 Italy provided on a continuous basis an expert on juvenile law. In view of the precarious situation of the vulnerable elements in the Afghan context, the working group on women and juveniles took on a particularly important role for the promotion of rights of these elements of society. The activities of the working group were also of critical importance in terms of advising the relevant ministries on potentially demagogic issues that were strongly influenced by cases in the news such as, for example, the regulation of shelters for women who are victims of violence. In addition, several working groups were created over the past five years to discuss and advise the Afghan Government on specific legislative policies. This was the case of the working group made up by the Ministry of the Interior, the Attorney General’s office and donor countries to promote the regulation and standardization of procedures with the aim of strengthening the cooperation between police and prosecutors. The system outlined in the Criminal Procedure Code, consisting of the judicial police and investigating magistrates in charge of investigations, was in fact something new in the history of the Afghan judicial system, and the daily interactions between officials in the two branches were often subject to misunderstandings. The working group, created in 2007, promoted the preparation of standard operational procedures in order to increase investigative efficiency and reduce misunderstandings between the judicial police and investigating magistrates. Another thematic working group in which Italy actively participated was that on government policies with respect to the informal justice system. As outlined in the first section, the administration of justice by means of local councils (shura or jirga) is a constant element throughout the Afghan judicial system. Traditional dispute resolution is something with which the formal justice system must learn to coexist. In this perspective, the working group formed by the principal donor countries active in justice reform was able to assist the Ministry of Justice from a very early stage in the preparation of a political strategy and, currently, a legal text for regulating the relations and synergies between the formal and informal justice systems. In this sector the experience of international experts, accustomed to arbitrations and other practices for settling disputes, proved to be invaluable for outlining an essential, albeit circumscribed, sphere in which the local councils could operate. Lastly, an ad hoc advisory group was created in 2007 to monitor reforms in the anti-corruption sector. The group was given the responsibility for writing the anti-corruption strategy text incorporated within the ANDS. Legal experts and representatives from the financial police alternated over the years within this working group to advise the Afghan Government and coordinate the efforts and programs of the international community in the sector. In addition, following the 2010 London Conference, the Afghan Government made firm commitments to drastically reduce corruption in all sectors of the country. As a result of these commitments, the demand for advisers and international experts to work alongside the Afghan authorities in their struggle against corruption significantly increased. The mandate of the working group thus did not terminate with the approval of the ANDS, but on the contrary its strategic importance was continually strengthened in the promotion of political reforms, appropriate laws, optimization of institutions and procedures in the anti-corruption sector, and dissemination to Afghan officials of “best practices” useful to them in their daily struggle with the effects of bad governance. Conscious of the fact that the working groups were essential for increasing the professionalism of Afghan officials, the Italian Government actively participated in all of the activities listed above. The justice sector involved not only structural and technical reforms but also political considerations and evaluations, and the promotion of good government. In this perspective, from the very beginning the Italian aid effort understood that concrete projects for the development of judicial institutions had to be accompanied by guidance on the relevant policies to be followed. For no matter how large the efforts of the international community might be, the sustainability of the programs being financed could be severely compromised by policy choices that were insufficiently forward-looking. The working groups already mentioned, and others to be created in the future to deal with specific issues, have the delicate task of keeping the efforts of the Afghan Government and the international community on a steady path towards a coherent, stable, inclusive and sustainable justice system. 2.1 Areas of intervention - Assistance for reform of judicial rules and procedures 45
  • 42. 2.2 Training of judicial sector personnel and strengthening of judicial institutions Group photo taken at the end of an IDLO training course, in front of the INLTC building. © IDLO D ecades of conflict left the Afghan legal and justice system with insufficient qualified personnel to ensure that justice was administered in a professional, transparent and equitable manner, and that it was accessible to the majority of the population. After the fall of the Taliban, the new Afghan Government inherited weak and damaged judicial institutions where they still existed12. Moreover, judicial infrastructure was in a complete state of disrepair and the sector lacked judges, lawyers, prison guards, police officers and qualified administrative personnel. The lack of adequate security for workers in the justice sector – particularly prosecutors, lawyers and judges – represents a major obstacle to the functioning of the system, compromising both the impartiality of judicial institutions and citizens’ access to them. Homicides and personal attacks directed against personnel of the three judicial institutions occur on a periodic basis throughout most of the country: according to data collected by the UNDP project (co-financed by Italy) Provincial Justice Coordination Mechanism (PJCM)13, over the period 2007 to 2009 there were twelve homicides of justice sector officials, and a further ten attacks and attempted homicides. Despite various reform and standardization efforts, the monthly salary of judges and prosecutors, as well as other government employees, averages between 80 and 100 dollars. Apart from diminishing the profession’s prestige and encouraging new graduates of the Sharia and Law faculties to choose other career paths, this is a prime motivation for corruption among judicial workers14. The need for interventions to strengthen national institutions, to increase skills of officials and workers through training courses, and to improve working conditions from the point of view of both salaries and security, was evident from a very early date. In view of the lack of qualified personnel and appropriate training courses, along with the absence of legal and legislative texts, in the immediate post-war period a large number of judges had little or no knowledge of the laws in effect, and many decisions were taken without consulting or making reference to legal codes and judicial rules. These problems were obvious from the very beginning, especially at the provincial level where the personal opinions of 12 According to some estimates – whose sources, however, are anecdotal – 75 per cent of disputes are still settled today through the so-called informal justice sector, i.e., by the shura and other traditional methods of mediation and conflict resolution, particularly in rural areas. 13 Provincial Justice coordination mechanism - Overview of assistance to the justice system in the provinces of Afghanistan, UNDP, December 2009, annex 5. 14 A data survey published in July 2010 by Integrity Watch Afghanistan (IWA) indicated that corruption is considered to be the third most important problem in the country, after lack of security and employment opportunities. In a number of regional capitals, corruption is in fact considered to be the second leading problem (immediately following security). 46 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions
  • 43. judges frequently represented the primary source of law. According to a United Nations report in 200715, at the national level only 11.6 per cent of judges had graduated from a faculty of law, while more than a fifth had only a high school diploma. In addition, there was a severe lack of personnel in these professional categories16. As a result of the international community’s intervention, and in particular that of Italy, many deficiencies have been overcome over the past few years. The consolidation of Afghan judicial institutions, particularly the three principal ones (Supreme Court, Attorney General’s Office and Ministry of Justice), has been at the center of the Italian effort since 2002 to support reform of the justice system, and today continues to represent one of the principal sectors of intervention. More than 40 million euros, allocated by Italy in the past decade through multilateral projects to support the justice system, have been used for activities in the area of training and strengthening of judicial institutions. Nonetheless, there remain enormous education and training needs, above all at the postuniversity level. Among the numerous activities carried out through Italian contributions in the training and institutional strengthening sector, of particular importance has been the initiative to support the Independent National Legal Training Center (INLTC), a center of excellence for judicial training whose headquarters in Kabul was constructed entirely with Italian funds. The INLTC is an independent public institution whose aims include: strengthening educational standards in the legal sector; contributing to the accreditation and certification of judges and prosecutors; and training and facilitating access to the legal and judicial professions of new graduates from Law and Sharia faculties. Through the IDLO (International Development Law Organization), the Italian Government has continuously provided its own technical and financial support to the INLTC, ensuring the continuity, quality and diversity of the training courses carried out at the Center. During the period from 2002 to 2010 Italy also financed a number of other training activities in the justice sector through both multilateral channels and bilateral initiatives, aimed at improving the skills of personnel already employed in the judicial sector, as well as the knowledge of students and recent law graduates in order to guarantee, in a long-term perspective, qualified new recruits capable of applying Afghan laws. The majority of the training courses were organized as part of projects carried out by UNDP, IDLO and the International Institute of Higher Studies in Criminal Sciences (ISISC). Multilateral contributions allocated by Italy over the period 2002-2010 to the sector of legislative reform, training and strengthening of judicial institutions17. 2002 2002 - 2010 IDLO € 19,050,000.00 UNDP € 11,887,333.60 UNICEF € 700,000.00 UNIFEM ≈11% UNIFEM € 4,582,644.63 ≈12% World Bank Support to the State budget (JSRP-ARTF) ≈1% OHCHR World Bank Support to the State budget (JSRP-ARTF) OHCHR € 5,000,000.00 € 400,000.00 € 41,619,978.23 ≈2% UNICEF ≈46% IDLO ≈29% UNDP 15 Afghanistan Human Development Report 2007. 16 In 2010 the Supreme Court estimated that in order to alleviate the current shortfall, the total number of judges in the country would have to triple over the following five years – from 2,200 to nearly 6,000. 17 The majority of the multilateral projects involve activities that can be ascribed to more than one sector. The reported division among sectors is therefore based on estimates. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions 47
  • 44. Community leaders during legal training courses carried out as part of the UNDP project Access to Justice at the District Level. © UNDP 2.2.1  Legal training and assistance to judicial institutions Following the collapse of the Taliban, the Afghan justice sector, which historically had suffered from insufficient resource allocations and was weakened from decades of conflict, was faced with a lack of competent personnel. A large number of professionals and educated Afghans had left the country during the preceding years, and as a result many important positions in the sector were occupied by officials who had neither the technical skills nor the professional experience required to ensure the correct application of the law and of the international treaties to which Afghanistan had adhered. In the months following the international community’s intervention, the judicial institutions faced enormous challenges, which in some cases involved difficulties in correctly interpreting the legal sources of the existing law by justice officials who were often unable to physically access the relevant legal texts. Indeed, few Afghan judges and prosecutors had access to copies of law, statutes and legal codes, and in many cases they had neither the skills nor experience required to analyze and interpret them in a manner that would ensure their correct application. Condemned prisoners were frequently given sentences disproportionate to the nature of the crimes they had committed, or were subject to an individual judge’s discretionary power to interpret legal texts in a manner that was often completely arbitrary. It was not rare to find that accused persons were incarcerated well beyond the limits prescribed by the rules for preventive detention, and without having any access to legal assistance. Apart from supporting reform of the legal and regulatory framework, the Italian intervention through the Justice Program has been directed towards training and institution building in the justice sector, with activities financed both through multilateral – via various specialized UN agencies and international organizations18 – and bilateral channels – by means of initiatives carried out by the International Institute of Higher Studies in Criminal Sciences (ISISC), the University of Perugia and the University of Rome “Tor Vegata”. 18 IDLO, UNDP, UNODC, UNICEF, UNIFEM. 48 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions
  • 45. Number of people trained by individual organizations in Kabul, Herat and other provinces Organization Number trained Kabul Herat Other provinces IDLO 3366 3168 198 0 ISISC 1239 270 47 922 UNDP 1873 300 250 1323 UNODC 1693 1250 0 443 UNICEF 306 306 0 0 Universities of Perugia and Tor Vergata (Rome) 17 17 0 0 UNIFEM 20 20 0 0 Total 8514 5331 495 2688 4000 3500 3000 2500 2000 1500 1000 500 0 IDLO ISISC UNDP UNODC UNICEF UNIVERSITIES UNIFEM OF PERUGIA AND TOR VERGATA (ROME) Training courses have been carried out in the following provinces (numbers next to names of provinces correspond to provinces’ numbers on map): Badakhshan (30), Baghlan (19), Balkh (13), Ghazni (16), Herat (1), Jowzjan (8), Kabul (22), Kapisa (29), Kunduz (18), Laghman (32), Logar (23), Nangarhar (33), Paktia (24), Parwan (20), Samangan (14), Takhar (27), Wardak (21).   Kabul (5531 people trained)      Herat (495 people trained)     Other provinces (2698 people trained) 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions 49
  • 46. A group of participants at a training course at IDLO Headquarters in Kabul. © IDLO The Italian intervention has been carried out on two levels: on the one hand, trying to fill the existing gaps by training current justice system workers and, on the other, providing for the development and promotion of training activities post-university internships for new graduates in order to improve the legal skills of the new generation of jurists. Italian support has permitted a total of 8,514 people – judges, prosecutors, lawyers, officials from judicial institutions, professors and students – to be trained in a variety of legal subjects ranging from criminal to civil law, from family law to human rights, and in the new Juvenile Code. The courses and training activities organized with Italian support initially took place principally in the capital; since 2010 greater emphasis has been placed on such efforts in Herat province. In conjunction with the UNDP project Access to Justice at the District Level (AJDL) and two projects carried out by ISISC (Interim Training for the Afghan Judiciary and Provincial Justice Initiative), courses and training were organized in 15 other provinces19 for judicial sector employees, and religious and community leaders. Through the UNDP project Provincial Justice Coordination Mechanism, Italy also established a regional office in Herat for coordinating and monitoring the justice system; in 2010 this facility was taken over by the UNAMA Rule of Law Unit and continues to be operational today thanks to direct financial support provided by the United Nations Secretariat (Department of Peacekeeping Operations – DPKO). 19 As part of these projects, training courses were organized in 15 provinces (the number of people trained is shown in parentheses): Kunduz (197), Paktia (49), Balkh (294), Nangarhar (182), Badakhshan (213), Baghlan (207), Wardak (48), Parwan (43), Ghazni (42), Jowzjan (196), Laghman (50), Logar (48), Kapisa (50), Takhar (168) and Samangan (151). 50 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions
  • 47. Assadullah Popalzai Head of Planning and Foreign Relations Department, AGO, Kabul The training stage for the personnel of the Attorney General’s Office, organized by IDLO in 2004 and 2005 thanks to Italy’s financial support, focused on subject matters that included human rights, violence against women and administrative corruption and was undoubtedly helpful. We would like to expand the program to five zones of Afghanistan in order to allow all prosecutors from remote provinces to access this valuable training opportunity. Due to decades of war, Afghan people have not had the chance to access a modern and efficient justice system. Through the publication of legal textbooks and literature, the knowledge of law by our prosecutors has been improved. In addition, many crimes that have emerged recently in our country, such as drugs related crimes, terrorism, administrative corruption and informatics crimes, were new to our officials before the training was conducted by IDLO. Thanks to the support provided through IDLO training activities, our prosecutors are now able to better record and process crime cases and, as a result, the investigation and quality of services provided by our institution have improved. Also, thanks to the Italian contribution eight prosecutors were sent to Italy in order to pursue further specialized training through a Master’s degree. Prior to the Italian intervention, judges and prosecutors with university qualifications had received their degrees either from the Faculty of Theology (or Sharia) or the Faculty of Law and Political Science. The curricula of these two faculties were not at all similar and hence did not provide a common or uniform foundation to those who, following their university studies, wished to undertake a career in the legal profession; moreover, these curricula were in large part obsolete. By means of Italian financing, UNDP undertook the supervision of a Law Curriculum Development Committee that was established with the aim of updating the educational programs of the Faculty of Law and Political Science at Kabul University. The training courses financed by Italy – carried out principally through IDLO but also through UN agencies such as UNDP20, UNICEF21 and UNIFEM22, and ISISC – range in nature and duration from very short ad hoc training courses to much longer structured ones23. The latter include ninemonth training internships offered by the Independent National Legal Training Center (INLTC) which are aimed at aiding new graduates from the different faculties (Law and Political Science, Sharia) to consolidate their knowledge and understanding of law codes and court procedures; it should also be noted that the Kabul headquarters of the INLTC was constructed entirely with Italian funds. Finally, the nine-month INLTC courses for prosecutors are also highly appreciated; they have the analogous objective of providing high-quality and uniform instruction to justice system personnel. There nonetheless remains an enormous requirement for additional instruction, above all at the postuniversity level24. 20 As part of the projects Rebuilding the Justice Sector of Afghanistan and Access to justice at the district level. 21 As part of the project Support the reform of the juvenile justice sector and the development of a child-right based legislative framework in Afghanistan. 22 As part of the projects Gender justice program and Violence against women. 23 The average duration of courses offered by IDLO, UNDP and ISISC is approximately one month. 24 To give just one example, as a result of assistance provided by ten development agencies, as of today (2011) approximately 1,500 judges at the central and provincial levels have been trained in seven priority thematic areas, out of a total of 2,200 judges currently in service. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions 51
  • 48. Wadir Safi Executive Director of INLTC The Independent National Legal Training Center was established in order to offer a unique center where training for the graduates of the Sharia and Law faculties and advanced training for judges, prosecutors and defense lawyers could be provided. Since Italy built the structure and inaugurated it in 2007, we have announced to graduates from both faculties the possibility, at our Center, to take the one year internship which is compulsory in order to access careers within Supreme Court, AIBA and AGO. Since the establishment of the one year internship, out of a total of 1,000 enrollment requests received, so far only 200 graduates could be accepted due to limited accommodation capacity. They received training from 9 specialized trainers, who have practiced for more than 8 years within the judiciary, and from 9 assistant trainers, with at least 3 years of experience. At the INLTC, thanks to the contribution of IDLO, and mainly through Italian Government funds, the curricula for all three professional categories has been unified, which means that judges, prosecutors and defense lawyers are studying the same subjects, mainly civil, commercial and criminal law and the relevant procedures, which are taught by means of a pragmatic and reality-based pedagogical methodology which makes extensive use of case studies. One of the main problems within the judiciary in Afghanistan is that its officials have very different backgrounds: some judges might have studied at madrassas, which are high schools, not universities, some might have studied at the Law faculty and others at the Sharia faculty. The INLTC gives the opportunity to judiciary personnel to harmonize their different educational backgrounds and law knowledge. Thanks to the technical support we have received from the Italian Government and IDLO, all our trainers have learned a common training methodology and are providing training on rule of law under professional guidance aimed at ensuring quality control of training outcomes. Despite the many challenges, the existence of an independent training center is important and will allow us to have a new generation of law practitioners who will be able to apply the laws in a professional manner, thus contributing to strengthen the rule of law in this country. As has already been noted, the majority of training activities financed by Italian Development Cooperation, including the first courses provided by INLTC, were carried out by IDLO between 2003 and 2010 as part of three projects25, as the result of which 3,366 persons were trained, including 757 employees of the Ministry of Justice in Herat and Kabul, 789 employees of the Attorney General’s Office in these two cities, and 1,091 employees of the Supreme Court. 25 Enhancing the Capacity of Legal Professionals (ECLP), Increasing Afghanistan’s Capacity for Sustainable Legal Reform (IACSLR), Supporting the National Justice Sector Strategy of Afghanistan (NJSS). 52 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions
  • 49. Number of people trained by IDLO in Kabul and Herat. Projects* v ECLP Ministry of Justice (Kabul) IACSLR NJSS 1 297 288 128 364 208 Ministry of Justice (Herat) Attorney General’s Office (Kabul) 346 106 30 44 63 45 680 25 109 745 21 1091 8 29 150 256 221 Other ministries Faculties of Law and Sharia 713 84 INLTC National Assembly Total 14 Attorney General’s Office (Herat) Supreme Court NJSS 2 221 93 *ECLP = Enhancing the Capacity of Legal Professionals. IACSLR = Increasing Afghanistan’s Capacity for Sustainable Legal Reform. NJSS = Supporting the National Justice Sector Strategy of Afghanistan. 204 111 AIBA 4 4 LAOA 7 7 WAW 8 8 Kabul Herat 3366 3168 198 Total 1224 1726 312 104 Mohammad Younos Prosecutor in Anti-Corruption Department, AGO In Afghanistan we have two anti-corruption departments within the AGO, a civil and a military one. The military anti-corruption department I am working for deals with cases in which police officers are involved. Considering the current situation of Afghanistan, we have to admit that corruption is at a peak, and that not only a department, but a separate organ would be necessary in order to handle all cases. I was one of the first participants in training provided by IDLO focusing on anti-corruption strategies and laws, and corruption crimes. I believe the training was helpful and I saw important improvements of my legal knowledge on these subjects, and I think this might have been the case also for the other participants. After having taken part in that training I was also able to teach in Herat on anti-corruption related matters thus providing my contribution as an Afghan prosecutor to the strengthening of the capacities of our institutions in this important justice sector In addition, as a result of the collaboration with the University of Perugia, seventeen Afghan professionals were given the possibility to attend a year-long master’s program in Italy as part of the project Alta formazione in discipline legali per l’Afghanistan (“Higher Education Program in Legal Disciplines for Afghanistan”). Italy also provided for the renovations of the libraries within the INLTC, the Sharia Faculty, the Faculty of Law and Political Science and the Taqnin (the legislative department of the Ministry of Justice), supplying hundreds of legal texts. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions 53
  • 50. Din Mohammad Gran Dean of Sharia Faculty, Kabul University The Sharia Faculty, which was established in 1951 and nowadays counts yearly over 1,000 students, is divided into a Department of Law and Jurisprudence (only accessible to male students) and a Department of Islamic Studies, for both male and female students. We also recently started a Master’s Program for 20 students. Thanks to IDLO and Italy’s funding, a library was established at the Sharia Faculty: this was a big support, since it is used daily by almost 200 students from this and other faculties. We hope that it can be expanded in the near future. IDLO also sent four of our professors to Egypt on short educational study trips. The participants were satisfied and pleased with the organization of this initiative. Furthermore, Italy supported training, through IDLO, of 15 teachers on advocacy skills which also proved to be a very effective and needed training activity. As part of three projects promoted by the UN agency UNODC26 1,000 prison employees in Kabul and 200 in the provinces were given training on the Prison Code. sensitization of the population throughout the country: by the publication of a newsletter27, organizing theatrical events and round tables28, putting on conferences29, and producing and distributing both information materials and a number of specialist publications for the sector30. Apart from carrying out important training activities, Italy has also contributed through various projects to the legal P resent in Herat since 2005, Italian Development Cooperation in 2010 intensified its involvement in the reconstruction of the justice sector in the province, contributing via both multilateral and bilateral projects to the strengthening of institutions and the training of legal personnel. In this context, in collaboration with the Italian Justice Program Office, IDLO organized the first provincial seminar in Herat (27 September 2010) with the aim of identifying priority training needs of judicial institutions and of the various organizations operating in Herat province. Numerous authorities participated in the conference, including Maria Bashir, Chief Prosecutor in Herat province, Ghulam Mohammad Rahmani, head of the 54 Justice Department in Herat, and representatives from the Afghanistan Independent Bar Association (AIBA), UNAMA and the faculties of Law and Sharia at Herat University. Through various projects 495 judicial sector workers have been trained to date in Herat. Of these, 198 (including 44 employees of the Ministry of Justice and 109 from the Attorney General’s Office) have participated in courses organized by IDLO. In addition, a number of activities are currently being carried out at Herat University including: training courses on practical legal cases for students in their final year of study at the Law and Sharia faculties given by lawyers, prosecutors, judges and officials from judicial institutions; practical training internships focusing on family law, juvenile justice and women’s rights; and activities to facilitate the integration of new graduates into the working world. Italian Development Cooperation, through its support of the Afghan NGOs ASCHIANA and LAOA, has also provided assistance to juveniles in conflict with the law and to detainees lodged in the Juvenile Rehabilitation Center and the women’s prison in Herat. Directly-managed interventions carried out through ASCHIANA have included assistance to the legal and health sectors, activities to promote literacy and professional training, psychological assistance and sport-related activities, all with the objective of improving living conditions and facilitating the reintegration into civil society of former juvenile detainees. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions
  • 51. Sayed Ghulam Mohammad Rahmani Head of Herat Provincial Justice Directorate, MOJ The contents of the training courses provided by IDLO were identified based on needs assessments and included subjects related to priority work fields our officials are involved in on a regular basis. The training was focused on civil and family law and commercial subjects and our training material included the Civil Procedure Law, the Civil Code, the Commercial Code and the Heritage Law. I have witnessed positive changes of participants in their respective work field and their way of thinking; they now refer correctly to laws and feel more responsible to assist people accessing their services. I personally believe that training should be provided in every operational field in order to enhance the capacity of all officials and I think that, in particular, some of our officials still need further training, particularly on the Civil Code and especially on its sections regarding contracts and civil procedure law. Also, I believe that their skills in resolving disputes through settlement and negotiation should be further improved. Judge Keshmir Head of State Cases Department, MOJ Provincial Directorate, Herat I have participated in three training workshops organized by IDLO with Italian funding, both here and in Kabul. The training held in Kabul was particularly useful to me because the Egyptian trainers were really competent professors. The content included the explanation of the articles of the Civil Procedure Code, the Commercial Code and the Law on state properties. It really broadened my viewpoint with regard to some legal issues. Not only was my legal knowledge improved, but also, as a result of the training received, my colleagues now refer to articles of the law when writing their act of indictment and defense statements. I think that in the future IDLO should make sure that by participating in the training workshops, one is granted a high level certificate accepted also by the Ministry of Education, this would increase the trainees’ interest and motivation. 26 Reform of the penitentiary system in Afghanistan (R41), Criminal law and criminal justice capacity building in Afghanistan (R42), Prison System reform: extension to the provinces (R87). 27 UNDP, Rebuilding the Justice Sector of Afghanistan. 28 UNDP, Access to justice at the district level. 29 UNDP, Rebuilding the justice sector of Afghanistan. 30 Afghan Legal System (UNDP – Access to Justice at the District Level), Improving Rehabilitation Services Delivery at Juvenile Rehabilitation Centers in Afghanistan (ASCHIANA), Basic Training Manual for Prison and Detention Center Workers (UNODC, Reform of the penitentiary system in Afghanistan), The Religious Rights and Duties of Muslim Inmates in Prison (UNODC, Reform of the penitentiary system in Afghanistan), The Afghan Legal System (ISISC in UNDP project, Access to Justice at the District Level ), Selected Decisions of the Afghan Supreme Court (ISISC in UNDP project, Access to Justice at the District Level ). 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions 55
  • 52. 2.2.2  Free legal aid access for the indigent As provided for by the 2004 Afghan Constitution and the Interim Criminal Procedure Code, a functioning justice system and the full protection of human rights require an effective access to legal services. In Afghanistan, a country in which the overwhelming majority of the population live in conditions of extreme poverty, a substantial number of accused still come to court without any form of legal representation, and many detainees do not have access to legal assistance services or legal aid. Moreover, the number of lawyers in the country is insufficient, and the Ministry of Justice’s Legal Aid Department has only limited resources for free legal aid for the indigent. The Huquq department of the Ministry of Justice, the focal point for out-of-court mediation of civil and territorial disputes, has offices in all of the provinces but due to lack of resources, notably adequate means of transport, residents in rural areas often are unable to come there. 56 The lack of organizations and professionals able to provide free legal aid means that in many areas of Afghanistan legal representation is rare or non-existent. As a result of the international community’s intervention, a culture of legal defense and free legal aid for the indigent is gradually becoming implanted throughout the country. As part of this process, the establishment and subsequent reinforcement of the Afghanistan Independent Bar Association (AIBA), made possible through the contributions of international donors including Italy, represented a milestone. It should be emphasized that one of the conditions imposed on members of the association is to provide free legal aid to at least three clients per year. In addition, AIBA is particularly involved in the promotion of women’s rights, the entry of women into legal professions and activities to sensitize public opinion concerning the right of legal defense, via appropriate specialized internal commissions in each of these areas of intervention. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions
  • 53. © Ariadna Alvarado, UNAMA Rohullah Qarizada President, Afghanistan Independent Bar Association (AIBA) The Afghanistan Independent Bar Association (AIBA) provides an essential service to the Afghan people by processing exams for hiring new lawyers, issuing activity licenses to lawyers and extending them, maintaining the relations between lawyers and the Ministry of Justice, the Supreme Court and the Attorney General’s Office and providing training to lawyers. Unfortunately, due to a limited operational budget, we cannot expand our presence outside of Kabul by opening up new branch offices in the provinces. This would be very helpful in order to improve relations with lawyers and increase our visibility and efficiency. In Herat, for example, there are 170 lawyers that have to travel to Kabul in order to obtain their working licenses and basic services from AIBA, since we don’t have an agency there. This undermines their interest and motivation in being part of the association. I hope that, thanks to Italian funding, we will be able to solve this problem in Herat. A major achievement obtained through Italian funding is the publication of the roster of our members which will allow us to increase visibility in Kabul and in the provinces, and also provide a great service to that part of the population that does not have access to the Internet, since they will be able to consult the printed inventory of lawyers. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions 57
  • 54. Through its own Justice Program Italy has for a number of years invested in free legal aid for the indigent, via both multilateral projects and allocations of funds directly managed by the local Office of Italian Development Cooperation. The Italian contribution has permitted, primarily through projects carried out by IDLO31, the development of training activities for officials of the Huquq and Legal Aid departments of the Ministry of Justice and for a number of members of the Afghanistan Independent Bar Association (AIBA). Further support to the AIBA will be provided in the future through the IDLO project Supporting the National Justice Sector Strategy of Afghanistan, to include the publication of a monthly journal that will contribute to the strengthening of the links between AIBA central headquarters and the members of regional branches, support for fundraising for the administrative management of the association, and the opening of an AIBA center in Herat province. Mohammad Nasim Barna General Director of Huquq Department, Ministry of Justice, Kabul “Huquq” in Dari means “Rights”. The Huquq Department, which operates according to the “Law on the Procedure for Obtaining Rights”, has been part of the organization of the Ministry of Justice since its establishment. Its task is to settle disputes of “physical and legal persons” pursuant to the Civil Procedural Code and the Law on the Procedure for Obtaining Rights through settlements and/or mediations, to enforce the decisions of the courts and to provide public legal awareness. Only recently a new Department of Public Legal Awareness was established according to the National Justice Strategy of Afghanistan in order to provide legal awareness to all Afghan citizens. This department enables the settlement of civil cases before these are brought before the courts. As a result, it plays a very important role in diverting legal suits that can contribute to congest the judiciary court system. While several agencies and donors have provided support to our justice system, according to my opinion, Italy’s contribution through IDLO has been exceptional in terms of building the capacity of our officials. Training workshops organized for the staff of our department were very useful and had a vital value especially for those who had no previous knowledge of the laws and were unaware of key legal issues relevant to their job. Before attending such training activities, many employees of our department were not very knowledgeable about their mandate and they did not have sufficient understanding of the “Law on the Procedure for Obtaining Rights”, nor of basic human rights and, in particular, of women’s rights. Thanks to such training activities implemented by IDLO and funded by Italy, the majority of our employees have been given a chance to enhance their professional and technical skills and knowledge. 31 Increasing Afghanistan’s Capacity for Sustainable Legal Reform; Supporting the National Justice Sector Strategy of Afghanistan. 58 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions
  • 55. For a number of years Italy has also supported, through both technical and financial assistance, the Legal Aid Organization for Afghanistan (LAOA), one of the principal Afghan NGOs – currently with its own offices in 14 provinces – which provides free legal assistance to the vulnerable sectors of the population. LAOA was founded by personnel who had received training in INLTC courses, and with the direct support of IDLO and Italian financial contributions. The opening of the LAOA office in Herat in 2010 was made possible by Italian financing. Through its training activities and the institutional support initially provided by IDLO, and with subsequent financial support from other donors, LAOA has to date provided assistance for 3,077 legal cases involving indigent residents of Kabul and 20 other provinces throughout the country. Masood Sana Head, LAOA Herat Office LAOA (Legal Aid Organization of Afghanistan) provides free legal aid through a variety of activities that include free legal aid defense services to vulnerable persons, legal aid awareness and advocacy activities, and strengthening of capacity building through the implementation of legal aid defense training for paralegal practitioners. Legal aid defense services – particularly the ones offered free of charge to assist vulnerable people – are still a relatively new phenomena in Afghanistan and this is why the role played by LAOA in this regard is particularly important. Enhancing legal aid defense skills of legal aid defense practitioners is also a very challenging and needed task, since educational curricula at our law and Sharia faculties are still very much focused on theories rather than on case studies. Our organization has been supported by Italy since the very beginning, both through direct contributions and through technical assistance projects implemented by IDLO with Italian funding. Thanks to the Italian support, regional LAOA offices were opened in Herat, Badghis and in eleven other provinces. In Herat, LAOA has assisted a staggering number of cases: 839 cases in just one year (2010-2011). I believe people are now better aware of their right to defense, as a result also of awareness seminars on the rights of women and juveniles organized with the help of Italy. We are now planning to publish and disseminate the texts of the lectures made in such seminars that will serve as a tool to support future legal awareness activities in the western region. We believe more training for paralegals is needed, since we do not have enough lawyers in the country; for this reason we plan to further expand LAOA outreach to cover also the most remote areas of Afghanistan. As part of the UNDP project Access to Justice at the District Level, financed almost entirely by Italy and carried out between 2005 and 2009, free legal aid was also provided in six provinces32 by the local NGO Afghanistan Human Rights Organization (AHRO) to approximately three hundred indigent people. In addition, Italy has provided support to the NGO Afghanistan’s Children – A New Approach (ASCHIANA) which provides legal assistance to minors in conflict with the law held in juvenile detention centers in Herat and Kabul. 32 Assistance to 45 cases in Baghlan, 28 in Badakhshan, 31 in Jowzjan, 78 in Kunduz, 102 in Samangan and 13 in Takhar. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions 59
  • 56. A rticle 31 of the Afghan Constitution provides for the right to a defense attorney at the time of arrest, including a public defender for those who are indigent. There are also laws and regulations that guarantee these rights, notably the Interim Criminal Code, the law regulating the organization and jurisdiction of tribunals, the Advocates’ Law, and the Juvenile Code. In terms of the requirement for free legal aid for the indigent, regulated by the Advocates’ Law, there are a number of means by which defense services are provided to the indigent: by the Legal Aid Department of the Ministry of Justice, through NGOs that are accredited to provide legal services, and via registered defense attorneys and legal clinics. Article 96 of the Interim Criminal Code also provides that until such time as there are a sufficient number of defense attorneys, a person suspected or accused of a crime can have recourse to assistance from an educated person who has an understanding of legal matters. This provides a certain form of recognition to the category – for lack of a better legislative definition – of “paralegal aid providers” who have no formal qualification for practicing as a lawyer. Legal Aid Department A regulatory system for the provision of free legal aid has existed since 1990, and the Advocates’ Law which came into effect in 2008 transferred the responsibility for this from the Supreme Court to the Ministry of Justice, which now has the obligation to designate someone to provide free legal aid to indigents at each stage of the legal process. At the beginning of 2009, the Ministry’s Legal Aid Department had 17 defense attorneys on its staff. Most of their work takes place in Kabul, since until mid- 60 2009 there were no offices in other provinces, and even in the capital many difficulties were encountered. In particular, the lack of means of transport has meant that defense attorneys employed by the Ministry of Justice have had to provide their own transport for meeting clients, traveling to court or visiting police stations and detention centers. The Department was, however, able to provide limited legal assistance in nine provinces in 2008. According to the records of the Supreme Court, the case load of criminal cases registered in the courts was approximately 6,500 during the first half of 2008; the Legal Aid Department reported that it had managed approximately 1,000 of these cases. NGOs There are ten NGOs that provide free legal services in various provinces. Some of these offer legal assistance only, while others are also involved in mediation and outreach activities. While the NGOs provide an important range of free legal services in the provinces, thereby filling a significant void represented by the absence of public legal aid programs, their presence is not universal and security problems have meant that some of them have had to abandon a number of insecure locations (Kandahar, for example), thus further limiting the national coverage of these services. In 2008, in ten provinces there were still no free legal aid services to the indigent provided by the Ministry of Justice or NGOs specialized in offering such services. Private attorneys Private legal assistance is regulated by the Advocates’ Law. All independent lawyers, regardless of their specialization, must be registered with the Afghanistan Independent Bar Association (AIBA), which was founded in 2008. In August 2009, the number of lawyers registered with the AIBA was approximately 530. Of these, 195 provided criminal legal defense services through NGOs and 30 others provided assistance in civil cases. Based on Article 13 of the Advocates’ Law, every lawyer is obliged each year to provide free legal defense services to the indigent for at least three cases. Legal clinics A pilot program between Herat University, the International Legal Foundation–Afghanistan (ILF-A) and the Open Society Justice Initiative has established a legal clinic for law students at Herat University. The clinic has enabled students to participate in technical and practical procedural courses, and to observe trials while maintaining close contact with defense attorneys involved in the cases. After their training, students work as trainees at the ILF-A’s office in Herat which provides free legal aid to the indigent. An analogous initiative has recently been financed by Italian Development Cooperation at Herat through the NGO LAOA and Herat University. The faculties of Law and Sharia at Balkh University have for their part created legal clinics for a limited number of students for periods of three months, with the assistance of ILF-A. Paralegals Three of the NGOs that offer free legal aid (AHRO, ILF-A and LAOA) employ paralegals for specific tasks, such as informing clients of their basic legal rights, aiding defense attorneys and increasing public awareness of citizens’ legal rights. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions
  • 57. © Eric Kanalstein, UNAMA 2.2.3  Juvenile justice As part of the reform of the justice sector, in which particular emphasis has been placed on training and institution building, Italy has from the very beginning given special attention to initiatives to improve the conditions and rights of the most vulnerable and disadvantaged segments of the Afghan population, especially women and children. This commitment has been all the more important in view of the fact that contributions from other donors towards juvenile justice, as part of the international support to the reconstruction of the Afghan judicial and prison sectors, have been limited. The principal support provided by Italian Development Cooperation to juvenile justice and the rights of the child has taken the form, on the one hand, of participation in working and legislative drafting groups and, on the other, of construction in Kabul of a juvenile rehabilitation center and an “experimental” open section, the first of its kind in Afghanistan. Through projects carried out by the United Nations agencies UNICEF33 and UNODC34, Italy contributed to the training of 556 workers from judicial institutions35 in Kabul on the United Nations Convention on the Rights of the Child and on the new Juvenile Code – which was adopted in 2005 and whose drafting had involved significant input from our country – and to the distribution of approximately 11,000 copies of the United Nations Convention in local languages and 2,000 copies of specialist documents for the sector. Also through these projects, study trips for personnel from judicial institutions were organized to Iran and Lebanon. 33 Support the reform of the juvenile justice sector and the development of a child-right based legislative framework in Afghanistan. 34 Reform of the Juvenile Justice System. 35 250 as part of the UNODC project Reform of the Juvenile Justice System, and 306 as part of the UNICEF project Support the reform of the juvenile justice sector and the development of a child-right based legislative framework in Afghanistan. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions 61
  • 58. © Najeeb Farzad, UNAMA Number of people trained in juvenile rights, by province, through multilateral projects (UNDP, UNICEF, UNODC)36. PROVINCE Justice officials Community leaders Religious leaders Students Teachers Kabul 586 0 0 0 0 Balkh 163 21 0 16,000 160 Herat 179 23 0 16,000 160 Baghlan 70 30 6 18,200 177 Jowzjan 70 31 4 17,212 166 Kunduz 65 38 1 11,997 118 Samangan 63 37 1 14,700 145 Badakhshan 61 51 1 8,800 88 Takhar 75 40 3 8,800 88 Nangarhar 21 54 6 10,400 104 Total 1,353 325 22 122,109 1,206 Italy also contributed to the support of training activities in the provinces through its financing of the UNDP project Access to Justice at the District Level which, between 2005 and 2009, provided training for 257 justice system employees in nine Afghan provinces37 on various topics linked to justice, including the rights of children, carried out by the International Institute of Higher Studies in Criminal Sciences (ISISC) and the Afghanistan Human Rights Organization (AHRO). 125,015 As part of the same project, an additional 510 workers in eight provinces38 were given training on criminal law and on human rights of women and children, while courses of legal sensitization dealing with themes related to juvenile justice were organized for 325 community leaders and 1,478 religious leaders in nine provinces39. 36 Juvenile rights are treated as part of the more extensive legal training and sensitization courses on human rights. 37 Balkh, Herat, Baghlan, Badakhshan, Jowzjan, Kunduz, Nangarhar, Samangan, Takhar. 38 Balkh, Herat, Baghlan, Badakhshan, Jowzjan, Kunduz, Samangan, Takhar. 39 Balkh, Herat, Baghlan, Badakhshan, Jowzjan, Kunduz, Nangarhar, Samangan, Takhar. 62 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions
  • 59. In 2005 the Juvenile Justice Department was established at the Ministry of Justice. As shown in a 2008 UNICEF report, crimes committed by minors are often relatively insignificant ones that can be attributed to the conditions of extreme poverty in the country. Even a cursory look at the statistics on detained minors will confirm that most juveniles are accused or convicted of small thefts or for having run away from home, actions which by themselves certainly do not call for criminal treatment. Offenses for which minors are detained (males and females)40. 8% Fighting 12% Sodomy, adultery 2% Runaway 6% Drug related 2% Illegal arms/smuggling 3% Child trafficking 4% Other 2% Rape, sexual abuse 27% Murder, kidnapping 34% Robbery, theft 32% Sodomy, adultery 24% Runaway 11% Other 11% Child trafficking 14% Lost, shelterless 8% Murder, kidnapping Such data clearly show the importance of interventions not only for training and education, but also for sensitization on the subject of children’s rights, and for interventions to support communities and families of children in conflict with the law, especially in the more remote provinces. Italy has consistently supported this type of activity through the UNDP project Access to Justice at the District Level, in the framework of which numerous public events to promote human rights and children’s rights (theatrical performances, video presentations and round tables followed by public debates, as well as sensitization campaigns on radio and in newspapers) have been organized, involving tens of thousands of people throughout the country. In addition, with the participation of local NGOs, UNDP has organized educational programs relating to human rights for teachers and students in nine provinces41, which have been attended by 1,206 teachers and 110,124 students. 40 Justice for Children: the situation for children in conflict with the law in Afghanistan, UNICEF, 2008. 41 Balkh, Herat, Baghlan, Badakhshan, Jowzjan, Kunduz, Nangarhar, Samangan, Takhar. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions 63
  • 60. Mohammad Yousef Director of ASCHIANA (Afghanistan’s Children – A New Approach) ASCHIANA is a non-governmental organization registered with the Ministry of Economy and it has been working since 1995 in Afghanistan. ASCHIANA’s main goal is to assist war affected children, children with special disabilities and poor children and their families. ASCHIANA mainly deals with children in conflict with the law and their families by providing support to them and their communities in five provinces, namely Kabul, Parwan, Mazar-e-Sharif, Herat and Paktia. Apart from offering basic education programs and vocational training to juveniles and implementing small microfinance projects to increase the economic capacity of women, ASCHIANA also works on the reintegration of former child soldiers, on community peace education, vocational training, sponsorship programs for school children, physical training and emergency support. The situation in Afghanistan, after more than three decades of war, is especially difficult for children and women without the support of their families. ASCHIANA’s activities are important not only because they contribute to provide support to children and women in detention in a variety of areas, but also because they contribute to support preventive measures for vulnerable people at risk of getting in conflict with the law. 64 Throughout the years, ASCHIANA has received support from the Italian Development Cooperation. In 2003, thanks to Italian funding channeled through UNICEF, we were able to establish a rehabilitation center for children, the first of this kind after the end of the civil war and the fall of the Taliban. The subsequent establishment of rehabilitation centers for juveniles in various provinces could be realized by ASCHIANA also thanks to the Italian financial support. Currently, we are working with Italian funding mainly in the Juvenile Rehabilitation Centers in Kabul and Herat by providing, among other things, vocational training and psychological support to the detainees and their families and communities. We are also working on the drafting of a publication, funded by Italy, aimed at documenting best practices of the assistance initiatives undertaken in support of juveniles, particularly in the Juvenile Rehabilitation Center of Kabul, that will be of great help in order to increase the visibility of our organization and in documenting concrete ways to provide effective assistance through legal aid services, medical services, literacy and vocational training, and psychological counseling to the children of that center. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions
  • 61. I n 2005 the Afghan Government adopted the new Juvenile Code, which raised the age of criminal responsibility for minors from seven to twelve years. The new code also prohibited sentences of life imprisonment or death for minors. Children can no longer be held in adult prisons and have the right to a public defender and an interpreter once they are imprisoned. Trials for juvenile crimes are to be held in juvenile courts to be established in each of the provincial capitals. Nonetheless, in a number of Afghan provinces the juvenile justice system is still very deficient. As a result, until recently minors in some cases continued to be subject to the same criminal laws and penalties prescribed for adults, in violation of the provisions of both the Juvenile Code and the United Nations Convention on the Rights of the Child, to which Afghanistan has adhered. Until very recently, some children accused of crimes were still judged in courts for adults and/or detained in adult detention centers and prisons, in violation of the rules in force which provided for juvenile suspects and juveniles who have been indicted or convicted to be held in juvenile rehabilitation centers only. At the present time, the majority of these centers are located in rented private homes, frequently ill-adapted for their use in this manner; in a number of provinces, in fact, there are still no juvenile rehabilitation centers. Moreover, within existing rehabilitation centers the conditions in which minors must live frequently do not comply with international standards, notably in terms of space, sanitary installations and adequate heating. Some juveniles are held in isolation for long periods, and practices of physical violence and abuse – although not documented by independent sources – are frequently reported by juveniles, above all in their dealings with police during the period of preventive detention, or prior to being transferred to rehabilitation centers. For Afghan juveniles, access to justice and the rule of law is often very limited, especially for young children. Most cases of domestic and community violence directed towards children go unreported, and child marriages remain a common practice. These factors make it all the more imperative that the international community intervene to assist these particularly vulnerable elements of the population, through training and educational activities regarding the existing laws and international rules on the treatment of juveniles, and through sensitization initiatives at the community level, above all in the more remote provinces of the country. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions 65
  • 62. © Eric Kanalstein, UNAMA 2.2.4  Gender justice Apart from professional training programs and aid for female entrepreneurs, Italian Development Cooperation has also provided support to Afghan women via activities carried out in the justice sector. The conditions facing women in Afghanistan are very problematic, and the deeply-rooted traditional mentality has also left its mark on the justice system, making the struggle for the defense of women’s rights all the more timely. The principal training and institutionalstrengthening activities relating to gender justice financed by Italy have been implemented through the United Nations agency UNIFEM, the international organization IDLO, and at the bilateral level. 66 As part of the Gender Justice project carried out between 2003 and 2005 by UNIFEM, three working groups dedicated to gender justice were established and subsequently promoted a series of meetings on the subject, in which approximately 2,300 women participated in sensitization and training activities in 23 provinces; 20 jurists also received training. The establishment of the Violence Against Women Unit within the Attorney General’s Office in Kabul, a result of the IDLO project Supporting the National Justice Sector Strategy of Afghanistan carried out with Italian financing, represented a milestone in the process of reconstructing the country’s gender justice system. In 2011 this structure was launched in Herat province, also through the IDLO and with financing provided by Italian Development Cooperation. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions
  • 63. The majority of the legal training courses organized by IDLO and UNDP for the judicial institutions have given special emphasis as part of their programs to women’s rights. In particular, the UNDP project Rebuilding the Justice Sector of Afghanistan has organized ad hoc English courses for Supreme Court justices in order to improve their foreign language skills and hence their international competitiveness, thus enhancing their possibilities of participating in study tours in other countries. Italy has also contributed to the support of training and sensitization activities in the provinces through its financing of the UNDP project Access to Justice at the District Level, which led to the training of a total of 124,899 individuals – justice workers, community and religious leaders, teachers and students – on a wide variety of legal topics including the rights of women and children. Number of people trained in women’s rights as part of the project Access to Justice at the District Level 42. PROVINCE Justice officials Community leaders Religious leaders Students Teachers Balkh 193 51 0 16,000 160 Herat 206 44 0 16,000 160 Baghlan 100 51 6 18,200 177 Jowzjan 100 51 4 17,212 166 Kunduz 87 66 1 11,997 118 Samangan 96 64 1 14,700 145 Badakhshan 96 66 1 8,800 88 Takhar 100 65 3 8,800 88 Nangarhar 45 81 6 10,400 104 Total 1,023 539 22 122,109 1,206 As reported in the preceding chapter, as part of the same project UNDP also organized a number of events on human rights, gender justice and juvenile rights – theatrical performances, video presentations and round table discussions, as well as a sensitization campaign on radio and in newspapers – in which tens of thousands of people throughout the country participated. 124,899 In 2011 Action Aid launched a three-year project, with majority co-financing from Italian Development Cooperation, which will carry out a number of sensitization programs related to the protection of women’s rights, with particular focus on several districts in Herat province. As part of the free legal aid activities for the indigent43, Italy has supported the access to such services by the most vulnerable elements of the population, above all women and children. 42 Women’s rights are treated as part of the more extensive legal training and sensitization courses on human rights. 43 Described in chapter 2.2.2. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions 67
  • 64. Training courses on human rights carried out as part of the UNDP project Access to Justice at the District Level. © UNDP C ompared to the Taliban era, the condition of women in Afghanistan has undoubtedly improved. According to data provided by humanitarian organizations, about 4 million children have returned to school and women are active in the new political institutions. A new Ministry for Women’s Affairs has been created and the Constitution, which came into effect in 2004, guarantees gender equality. Although Afghan women have been provided certain legal advantages in recent years, there continue to exist serious obstacles to the protection and recognition of their rights, including the right to security. Violence against women and the impossibility, in many cases, to seek judicial redress continue to represent a serious problem throughout the country. 68 There is still no legal recognition of sexual violence, whose victims are frequently imprisoned and accused of adultery; a widespread code of silence still persists which makes difficult the punishment of “honor” crimes; prisons are still all too full of women detainees who are victims of domestic violence – including forced marriages – which led them to run away from home and/or abandon their husbands. Domestic violence towards women is a common practice and shelters where victims of this type of violence can find refuge and assistance are few in number. There have been numerous cases in which women who have been victims of violence or forced marriages have been driven to the extreme of selfimmolation or suicide. Afghan women is reflected in the country’s justice system, both formal and informal. In those cases where women are prepared to report crimes committed against them, they run the risk of being ignored, accused of sexual offenses, arbitrarily imprisoned, unjustly prosecuted and/or returned to their husbands or to the families responsible for such crimes. Article 398 of the Criminal Code provides immunity from the charge of homicide to anyone who kills a spouse or close relative for reasons of adultery, the maximum penalty being two years detention. Gender inequality is also a prevalent characteristic of the justice system, where women today are very poorly represented. The high level of discrimination that still exists today towards 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions
  • 65. The Justice Sector Reform Project (JSRP) T he principal Italian economic contributions to justice sector reform have been effected through the 10 million euro financing of the Justice Sector Reform Project (JSRP) managed and carried out by the Afghan institutions themselves, and via a contribution to the Afghan Reconstruction Trust Fund (ARTF), a fund established in 2002 that is managed by the World Bank and financed by contributions from 27 donors. This latter project has been entirely entrusted to the Afghan authorities (Supreme Court, Attorney General’s Office, Ministry of Justice, Ministry of Finance), who define the individual reform activities and contract them out to Afghan and external organizations and entities through public tenders. The donors and the World Bank, through the Board of Donors, exercise the required control of disbursements and monitoring of progress of the activities. Bringing together the various parties interested in the reconstruction of the justice sector (local institutions, World Bank, donors, local and international contracting entities and organizations) on a basis of substantial equality, and leaving the direct management of the activities to the local authorities, the Project represents the first attempt at justice sector reform based on a multilateral perspective and respect for the principle of local ownership, in which the country receiving the aid takes over the oversight role not only for policies but also for planning and direct management of the development interventions. Moreover, as a result of the direct control by the Government in Kabul of the disbursed funds, the Project enters in its own right into the development budget of the Afghan Government. The Afghan Reconstruction Trust Fund has provided more than $27.5 million to the justice sector (donated by Italy, EU, UK, Norway, Canada, and the United States) for the first phase of the project, which is scheduled to finish in 2011. The contributions are being used for training and strengthening the operational capacity of workers, and above all for institutional building initiatives, in the three principal institutions: the Supreme Court, the Ministry of Justice and the Attorney General’s Office. To date the judicial libraries of the three institutions have been modernized, and 28 specialized libraries have been established at the provincial level; 175 automobiles have been acquired (24 for the Ministry of Justice, 78 for the Supreme Court and 73 for the Attorney General’s Office) and Reform Implementation and Management Units have been established at the Supreme Court and the Attorney General’s Office. As part of the project administered by the World Bank, offices for free legal aid and legal outreach have been established in a number of provinces44. In addition, the Justice Sector Reform Project provides for the design and construction of courts, residences for judges and administrative offices, and the expansion of the Independent National Legal Training Center building (construction of a dormitory to house students from the provinces). Nine additional infrastructure projects are planned to be carried out in the capital. Infrastructure has been built in the following provinces (numbers next to names of provinces correspond to provinces’ numbers on map):   Ministry of Justice: Nimroz (3), Helmand (7), Zabul (17), Faryab (5).   Supreme Court: Baghlan (19), Herat (1), Kabul (22).   Attorney General’s Office: Kabul (22), Kapisa (29), Khost (26), Kunar (34), Laghman (32), Nuristan (31)Urozgan (11). 44 Free legal aid offices: Kunduz, Balkh, Bamyan, Kandahar, Nangarhar, Paktia, Kabul and Herat. Legal outreach offices: Balkh, Kunduz, Kabul and Nangarhar. 2.2 Areas of intervention - Training of judicial sector personnel and strengthening of judicial institutions 69
  • 66. 2.3 Assistance to judicial institutions in the field of infrastructure The Pul-e-Charkhi prison in Kabul. W hen the international community intervened in Afghanistan, after decades of conflict, the Afghan justice system lacked not only qualified personnel, but also appropriate facilities in which judicial institutions and their officials could function, a suitable environment for carrying out training activities, and centers of detention and rehabilitation in line with international standards. Many of the facilities that did exist were damaged or dilapidated, or lacked the furnishings, computers, telephones and equipment necessary for properly carrying out the tasks appropriate to the country’s judicial institutions. Approximately 40 per cent of the Italian economic commitment carried out through multilateral projects over the 2002-2010 period was devoted to the infrastructure sector and, in particular, to about 30 rehabilitation and construction projects whose execution was entrusted to international organizations45. In addition, several works were carried out by direct management, i.e., with the funds managed on site through the offices of the Local Technical Unit of the Directorate General for Development Cooperation. Multilateral contributions to the judicial infrastructure sector between 2002 and 2010, by organization (per cent)46. ≈40% UNODC ≈17% UNDP ≈6% UN Office Vienna ≈17% IMG ≈3% UNOPS ≈17% World Bank Support to the State budget (JSRP-ARTF) 45 The majority of the multilateral projects involve activities that can be ascribed to more than one sector. The reported division among sectors is therefore based on estimates. 46 See note 45. 70 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure
  • 67. Infrastructure has been built in the following provinces (numbers next to names of provinces correspond to provinces’ numbers on map):* Badakhshan (30), Baghlan (19), Badghis (4), Balkh (13), Daykundi (10), Faryab (5), Ghor (6), Herat (1), Jowzjan (8), Kabul (22), Kunduz (18), Nangarhar (33), Paktia (24), Parwan (20), Samangan (14), Sari Pul (9). * Not included are activities carried out as part of the Justice Sector Reform Project (page 69). Apart from its interventions in the capital, Italy has also been active in renovating and constructing buildings in a number of other Afghan provinces. Over the past decade, 22 construction and 43 renovation projects were carried out throughout Afghanistan by means of Italian financing. The majority of these interventions involved buildings and offices of the principal judicial institutions – the Ministry of Justice, the Supreme Court and the Attorney General’s Office, both in the capital and in various provinces47. The Italian contribution also permitted the construction and/ or renovation of detention and rehabilitation centers in Kabul and Gardez and in the provinces of Herat, Balkh and Kunduz, as well as the rehabilitation of judicial court buildings and the construction of Justice Support Centers48 in a number of other areas of Afghanistan49. During the relevant period, rehabilitation and structural finishing works were also carried out within the Faculty of Law and Political Science at Kabul University, as well as renovations of the Juvenile Court, the National Security Court and the Court of Appeals. Infrastructural works carried out through contributions from Italian Development Cooperation between 2002 and 2010. Detention centers Infrastructure for other judicial institutions Constructions Renovations Constructions Renovations Kabul 3 2 1 7 Herat 0 6 4 4 Other provinces 1 5 13 19 Total 4 13 18 30 In addition to its infrastructural interventions, the Italian Government has provided a significant contribution to the operational strengthening of judicial institutions through various logistical assistance activities involving the supply of automobiles, equipment and office furnishings essential for assuring the operational functioning of the beneficiary institutions. Despite the interventions of Italy and other international donors in the judicial infrastructure sector, many needs still remain unfulfilled, above all in relation to the construction of new buildings and the maintenance of existing judicial buildings and equipment. The situation today is particularly problematic in the more remote provinces, where the conditions under which judges, prosecutors and administrative personnel must operate are frequently precarious due to the lack of furnishings, office supplies and essential logistical services (water supply, electricity, data transmission network). The sector that today suffers most from the lack of appropriate infrastructure is the prison system, due to the steady increase in the number of detainees in recent years. 47 Rehabilitation/construction projects for the three principal institutions have been carried out in the following provinces: Herat, Jowzjan, Badakhshan, Parwan, Ghor, Sar-e Pul, Faryab, Samangan, Badghis. 48 Multipurpose structures used in a wide range of activities in support of the administration of justice in the provinces. 49 In Mazar-e-Sharif, Kunduz, Nangarhar, Paktia. 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure 71
  • 68. Juvenile Rehabilitation Center in Kabul. © Marco Valerio Esposito 2.3.1  Prison infrastructure A major challenge facing the justice system in the country today is the lack of detention centers able to meet the basic needs of the steadily-increasing prison population, and to satisfy minimum international standards relating to prisons. The Italian effort has focused on infrastructural support of men’s detention centers in Kabul and in four other provinces (Herat, Balkh, Kunduz and Paktia) and has also included construction of the Juvenile Rehabilitation Center and the Female Detention Center in the capital. It should be emphasized that prior to the international community’s intervention in the sector, and in particular that of Italy, the country had no separate detention centers for women and juveniles, the latter being maintained within dedicated areas of individual prisons whose population largely consisted of adult males. 72   Kabul Intervention in Kabul The Italian intervention, carried out through the UN agency UNODC, which in turn made use of contributions from UNOPS, focused above all on Pul-e-Charkhi central prison in Kabul, currently the second largest, in terms of physical size, in central Asia. The Italian contribution permitted the realization, in 2003 and 2004, of a number of interventions in Block 1 of the prison, the area in which ordinary detainees are kept. In particular, a building with kitchens and sanitary facilities was constructed; the potable water and overall water supply systems, as well as the sewage system, were rehabilitated; a new septic tank and infirmary were built; and an electrical distribution center was installed. An area was also created within Block 1 where detainees can meet with their families. 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure
  • 69. Ibrahim Khan Deputy Administrative Director, Pul-e-Charkhi prison, Kabul In 2003, when Italy started funding the rehabilitation of this prison through UNODC, Pule-Charkhi only consisted of a so-called “block 1” which was hosting around 250 prisoners. Thanks to the Italian contribution, the water supply system, the drainage system and the health clinic were rehabilitated, a kitchen was built and the hygiene and functionality of the whole “block 1” was considerably enhanced. Currently, Pul-e-Charkhi is housing over 5,500 prisoners in four blocks and two high security areas for special prisoners, and will be further expanded, since it is facing problems of overcrowding and cannot offer proper accommodation and separation of detainees by classification. In 2010, due to the considerable increase of the prison population, new and larger facilities had to be built to support the prison. However, until last year, the kitchen and clinic funded by Italy served the whole prison. Aziza Adalat Khah Director of Kabul JRC The Juvenile Rehabilitation Center, which was built entirely with Italian funding with a capacity for 60 juveniles, is nowadays hosting over 200 kids. The lack of space, together with the shortage of personnel and teachers for the juveniles, causes many problems in the center. Thanks to Italian funding, among others, a sport gymnasium is currently being built inside the Juvenile Rehabilitation Center, the first of this kind. This facility is essential, because the children need to exercise not only in order to stay healthy, but also as a means to avoid quarrels among them. 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure 73
  • 70. The “Open section” of the Juvenile Rehabilitation Center in Kabul, constructed with Italian financing. A general restructuring of the men’s detention center in the Velayat police station in Kabul was also carried out by financing provided to UNODC. Prior to this intervention, this police station did not meet even the basic minimum in terms of international standards in matters of detention. The detention center held 652 detainees despite the fact that its maximum capacity was 300, and the electrical, water and sanitary systems were in a precarious state. The Italian contribution made possible a complete overhaul of these systems and the restructuring of a security tower, as well as a general renovation of the overall structure through repairs carried out to the flooring, windows and roof. Of particular importance was the Italian intervention in the juvenile sector in the capital. As a result of the Italian contribution50, a juvenile rehabilitation center was constructed, which includes an “open section”; the JRC “open section” remains the only such facility in the entire country. The country’s backwardness in the detention sector is most apparent with respect to the treatment of juveniles and women. The incarceration of juveniles, which formally in terms of the law51 is to be seen as the last option in the absence of more appropriate alternatives, is subject to precise rules. When imprisoned, juveniles are to be held separately from adults in special centers for the rehabilitation and correction of minors, which are supposed to exist in each province. According to data collected by the UNDP’s Provincial Justice Coordination Mechanism (PJCM), a project financed in part with Italian funds, in June 2009 there were 561 juvenile detainees, 498 males and 63 females. In April 2011 there were 821 juveniles held in juvenile detention centers throughout the country, 706 males and 115 females. Only two provinces, Herat and Kabul, today have dedicated juvenile rehabilitation centers, while in six provinces there is no structure whatsoever for dealing with minors. In the other 26 provinces, juvenile structures are located within buildings that have been rented, many of which lack the required infrastructure or in other ways are totally unsuited for the institutional tasks for which they are being used. These conditions severely limit the possibilities for effective rehabilitation and reintegration of juveniles in conflict with the law. In addition, due to the lack of adequate facilities, some juveniles have been detained with adults, particularly adolescent women in conflict with the law who at times were maintained in women’s prisons. The Juvenile Rehabilitation Center in Kabul, constructed by UNOPS on behalf of UNODC with Italian financing, currently lodges 142 minors from 15 to 17 years of age52. Within its confines a number of entities and organizations operate, providing a wide range of services: the Ministry of Education conducts literacy courses, the International Red Cross and Emergency provide health assistance, AWEC and ACFA – Afghan NGOs – are carrying out training and health courses, UNICEF and LAOA offer legal assistance, while UNICEF and several international NGOs provide social assistance services. 50 At Kabul through financing provided by Italian Development Cooperation and at Herat through financing from PRT. 51 Specifically, Article 35 of the Juvenile Code which entered in force in 2005; Italy made a significant contribution to the realization and promotion of this code. 52 As of May 2011. 74 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure
  • 71. Youth at the Juvenile Rehabilitation Center in Kabul. © Marco Valerio Esposito The women’s prison in Kabul is located within the compound hosting the Juvenile Rehabilitation Center. The facility used today for the detention of women was constructed in 2008 by UNODC via UNOPS with Italian funds, and was initially planned to be part of the juvenile complex. At the request of the Department of Prisons, its intended use was modified in order to accommodate female detainees who up until that point had been kept at the Pul-e-Charkhi central prison, following a number of incidents that had been reported there. The Female Detention Center today houses 153 female de- tainees and their minor children53 and has been equipped, via Italian co-financing, with a kitchen, an area for visits and a laboratory for carrying out training and vocational activities. The Italian contribution to UNICEF has also permitted the construction of an “open” section of the Juvenile Rehabilitation Center in Kabul, completed in August 2006. Within this center there are rooms for educational activities (literacy and computers) and a place for carrying out vocational training activities, where courses are given in tailoring, carpentry, and shoe repair. The center currently lodges 16 adolescents54. Interventions in other provinces The Italian intervention for construction and renovation of prison facilities has not been limited to the capital, as works have also been carried out in a number of other Afghan provinces. Through UNODC the prison at Gardez in Paktia province was constructed. And as part of the UNDP project Access to Justice at the District Level, detention centers in eleven districts in Balkh, Herat and Kunduz provinces were restructured and renovated.   Infrastructure has been built in the following provinces (numbers next to names of provinces correspond to provinces’ numbers on map): Balkh (13), Herat (1), Kunduz (18), Paktia (24). 53 As of March 2011. 54 As of Mai 2011. 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure 75
  • 72. Construction and renovation of prison structures between 2002 and 2010 carried out with Italian Development Cooperation contributions. PROVINCE DISTRICT INFRASTRUCTURE WORKS Nahreshahi Balkh Chimtal Kholam Renovations carried out as part of the UNDP project Access to Justice at the District Level. Hairatan Ghurian Injil Herat Gouzara Zandajan Construction works carried out as part of the UNODC project Prison System Reform in Afghanistan – Extension to the Provinces. Karukh Kohsan Kunduz Chardara Paktia Gardez Mr. Habibullah Director of Injil District Detention Center, Herat The Injil District Detention Center, which is currently hosting 56 detainees waiting for their cases to be brought before the court, was renovated through the Access to Justice at the District Level project of UNDP. Before the rehabilitation work, this place was completely damaged, there were not any carpets to sit on, its walls and rooms were black because of smoke and the detainees used to sleep on the dusty ground. I think that thanks to the work done, many things have changed: proper doors and windows were put up and the premise sections and cells were renovated. Furthermore, blankets, mattresses 76 and pillows for fifty persons were bought through the project. The rehabilitation affected of course as well the living conditions of detainees. It is tough enough to be in prison and, if the environment is bad, detainees will suffer even more and risk serious health and psychological damage. The main problem that currently still persists is the fact that our detention center does not have transportation vehicles; these are very much needed since in our facility transfer of detainees is requested on a daily basis. 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure
  • 73. T he prison population over the past decade increased at a dizzying rate, from 600 in 2001 to 20,000 for the country as a whole in 2011, representing a thirty-fold increase. In Afghanistan there are 33 provincial prisons and 185 district detention centers. As pointed out in the final report of the PJCM project, and confirmed in a report by the International Red Cross 55, with very few exceptions all of the prisons need significant improvements in order to approach international standards. In December 2008, in 25 of the 33 provincial prisons the number of detainees was more than double the capacity of the facility. The majority of prisons are not only overcrowded, but also suffer from lack of basic needs, such as water supply, heating, adequate food supplies, and health and sanitation facilities. A number of buildings are damaged and in need of renovation, while others are rented buildings that were never intended to be used as prisons and hence are entirely inadequate for this purpose. District detention centers also have only a very limited capacity and their condition is equally unsatisfactory. In contrast to the prisons located in the chief towns of the small provinces, the prisons in the major cities, in particular those for men, are generally well-managed, with a higher level of personnel and security. However, throughout the country, the level of appropriations has been insufficient to provide the basic necessities of life, such as adequate food and health care, and has also restricted the scope of maintenance for the facilities, correctional programs, and rehabilitation activities. In March 2011 the number of women prisoners in the country was 624. Women’s detention facilities are in general of lower quality than those for men, and in a number of provinces are non-existent. Women waiting to be processed are frequently held in juvenile rehabilitation and corrections centers, in the homes of elders or representatives of the community, or in the houses of their own families. as a result all constructions are based on the principle of maximum security. Minimum security facilities, which would be appropriate for a significant proportion of the prison population, would be far more economical to construct. A further problem facing the prison system is that arising from excessive recourse to imprisonment, which both creates overcrowding and lowers the minimum standards for care of individual detainees. While often this is the result of factors beyond the control of the prison administration, as for example with the loss of documentation, in many other cases these shortfalls are due to the prison and judiciary administrations themselves. For the same reason, a number of detainees spend more time in prison than is called for either by their sentence or the law. A problem of particular importance for current construction plans is that today there is still no national classification of detainees and prisoners based on the level of risk they present, and 55 The Provincial Prisons of Afghanistan: Technical assessment and recommendations regarding the state of the premises and of the water and sanitation infrastructure, December 2008. 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure 77
  • 74. Pictures of detention centers in several Afghan provinces prior to and after interventions carried out through Italian financing as part of the UNDP project Access to Justice at the District Level. Herat Province prior to intervention Works in progress after intervention Women’s detention center in Karukh (Herat Province). 78 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure
  • 75. Balkh Province prior to intervention after intervention Detention center in Nahri Shahi (Balkh Province). prior to intervention Works in progress after intervention Detention center in Chimtal (Balkh Province). 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure 79
  • 76. Construction of a building for the Ministry of Justice and the Attorney General’s Office in Parwan province, financed by Italy as part of the IMG project Construction of Provincial Facilities and Procurement of Vehicles for Judicial Institutions. © IMG 2.3.2  Infrastructure for other judicial institutions Apart from the lack of qualified personnel and inadequate prison facilities, one of the major obstacles to the functioning of the Afghan justice system has been the lack of appropriate judicial buildings, both courts and administrative offices, as well as private residences for officials, particularly in the provinces and districts. Decades of conflict and lack of maintenance led to a deterioration in the country’s already very limited judicial infrastructure, and impeded the construction of new facilities. Italian involvement over the past decade has focused on the reconstruction and renovation of government buildings and headquarters of the judicial institutions in Kabul and in a number of Afghan provinces, as well as at Kabul University, the latter aimed at supporting post-university training activities in law and related fields. Interventions in the capital In the immediate post-war period, the buildings of the three principal judicial institutions in the capital showed obvious signs from the nearly three decades of uninterrupted conflict. Dilapidated areas and lack of furnishings and equipment (including computers, photocopiers and telephones) rendered these buildings virtually unusable. Through Italian support of a number of multilateral projects of UN agencies (UNDP and UNODC), the buildings of the Ministry of Justice, the Attorney General’s Office and the Supreme Court in Kabul were put in usable condition. More specifically, the offices of the three institutions were completely renovated and the electrical systems brought 80 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure   Kabul
  • 77. up to standard, and office furnishings and equipment necessary for carrying out their respective tasks were provided. In addition, UNDP financed both the construction of an annex to the main building for the Attorney General’s Office, where the Counter-Narcotics Department has its offices, and automobiles for the Supreme Court. During the course of 2004 Italian support facilitated the carrying out of a project to renovate the principal building of the Court of Appeals in Kabul. This palace, which had been seriously damaged during the fighting in the capital, was in need of substantial repairs and restructuring throughout. Apart from its infrastructural interventions, Italian Development Cooperation also fitted out the offices, providing furniture, telephones, computers, printers, photocopiers, fax machines, lighting, as well as clothing (robes and hats) for judges. Italy financed via UNODC the renovation of the Juvenile Court in Kabul, providing furnishings and equipment for the courtrooms where the sessions take place. In 2005, through the local Afghan company NBCC, renovation works were carried out in the building housing the Court of National Security, involving upgrading the water, sanitary and electrical systems, as well as plastering and repainting the entire public part of the facility. presence in Afghanistan. Accordingly, Italy, which had undertaken technical assistance activities in support of the Faculty of Law and Political Science at Kabul University (in terms of revising the educational curricula and training professors and students) also contributed bilaterally to the renovation of the Faculty. During the course of 2004, six classrooms were renovated and made usable through directly-managed interventions, as well as three external classrooms. The interventions involved repairs and replacement of windows, floor and ceiling repairs, renovation of the heating system and repainting. Making use of the Afghan NGO Physical Education Association Kabul (PEAK), works of structural finishing and improvements to the electrical system were also carried out in 2004. UNDP, for its part, provided office equipment to the Faculty. In addition, the Independent National Legal Training Center was constructed entirely with Italian financing, through the UN agency UNOPS. The Center was created with the aim of significantly increasing the educational standards of personnel in the justice sector and legal professions, thereby contributing to the strengthening of the rule of law in Afghanistan. The building, located within the campus of Kabul University, has a number of classrooms where training courses are carried out, as well as a library (financed by the U.S.) containing specialized legal texts and a computer laboratory. University infrastructure also did not escape unscathed from the devastation of decades of war. The need to provide adequate space for carrying out educational activities, and in particular to clean up and renovate university facilities, was apparent from the earliest days of the international Judicial infrastructure interventions carried out in Kabul. Renovations of the offices of the Ministry of Justice, Attorney General’s Office, Supreme Court Renovation of the Faculty of Law and Political Science at Kabul University Renovation of the Court of Appeals Renovation of the National Security Court Construction of the Independent National Legal Training Center Renovation of the Juvenile Court 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure 81
  • 78. The Independent National Legal Training Center was built entirely with Italian funds. Interventions in the provinces The need to extend the rule of law beyond the capital, and hence to provide for the construction or renovation of facilities where officials could carry out their work, led Italian Development Cooperation to support, via multilateral projects, non-prison infrastructure projects in 15 provinces. As a direct result of the Italian intervention, nine buildings containing offices of the Ministry of Justice and the Attorney General’s Office were constructed as part of the IMG project Construction of Provincial Facilities and Procurement of Vehicles for Judicial Institutions in Afghanistan. This same project also supplied 50 automobiles to the Attorney General’s Office for use in the provinces. As part of the activities carried out by UNODC through Italian contributions, Justice Support Centers were constructed in four provinces, these being multipurpose structures used in a wide range of activities in support of the administration of justice in the provinces. These facilities are provided with classrooms for carrying out training activities, various types of meeting rooms, a bookstore, a Family Law Court, and a residence for officials. 82 Infrastrature has been built in the following provinces (numbers next to names of provinces correspond to provinces’ numbers on map): Badakhshan (30), Badghis (4), Baghlan (19), Balkh (13), Daykundi (10), Faryab (5), Ghor (6,) Herat (1), Kunduz (18), Jowzjan (8), Nangarhar (33), Paktia (24), Parwan (20), Samangan (14), Sari Pul (9). Two UNDP projects, Access to Justice at the District Level and Rebuilding the Justice Sector of Afghanistan (the first financed almost entirely by Italian Development Cooperation), provided for the renovation of twenty facilities in various Afghan provinces, for the most part courts and residences for officials. The majority of these interventions were concentrated in the provinces of Herat and Kunduz. 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure
  • 79. Renovation and construction of judicial infrastructure carried out in Afghan provinces with Italian funds between 2002 and 2010. PROVINCE Balkh Herat Baghlan Kunduz Jowzjan Badakhstan Nangarhar Paktia Parwan Daykundi Ghor Sari Pul Faryab Samangan Badghis Constructions carried out by UNODC. DISTRICT Justice Support Center Court Residences for officials Attorney General’s Office Ministry of Justice Offices for lawyers Mazar-eSharif Dawlatabad Nahreshahi Kaldar Chimtal Kholam Hairatan Herat Injil Gouzara Zandajan Karukh Kohsan Ghurian Central Baghlan Doshi Kunduz Imam Saheb Dashte Archi Khan Abad Chardara Aqcha Sheperghan Faizabad Jeram Jalalabad Gardez Charikar Nahili Chaghcharan Sari Pul Maimana Aybak Qalee Naw Renovations carried out as part of the UNDP project Access to Justice at the District Level. Renovations and constructions carried out as part of the UNDP project Rebuilding the Justice Sector of Afghanistan. Constructions carried out as part of the IMG project Construction of Provincial Facilities and Procurement of Vehicles for Judicial Institutions in Afghanistan. 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure 83
  • 80. Inauguration of a building for the Ministry of Justice and the Attorney General’s Office in Jowzjan province, financed by Italy and constructed by IMG. © IMG Among the activities carried out in the provinces, the Italian involvement was particularly important in the construction of residences for officials. Indeed, one of the major problems facing the justice system at the provincial level is the high rate of absenteeism of officials of the various institutions who, although appearing on the payrolls of the courts and ministries, do not work or live in the province or district of their assignment. The reasons for this range from a lack of adequate means of transport to the dangers involved in traveling to and from their assigned offices. In this context, the availability of facilities that are also able to offer lodging for dependents is of fundamental importance. As a result of the Italian contribution, both the Justice Support Centers provided by UNODC and the buildings constructed by UNDP include residential facilities for justice personnel. Mohammad Ghouse Head of Correspondence Department, Mazar-e-Sharif Appeals Court Before the building of the Justice Support Center through Italian funding, we lacked space and proper offices and guesthouses. The meetings and court sessions were held at the office of the head of the Appeals Court and the judges used to live in private hotels and guesthouses. The Justice Support Center comprises a dining hall, a conference room and some rooms to host visiting ministry officials from the capital. The construction was also very helpful in terms of improving the accessibility of people to the 84 justice institutions, since now public trials can be held. I personally think that these kinds of trials are very important in a functioning modern justice system, since they enable people to understand their legal rights and be aware of how courts function. Nevertheless, many problems still persist, the main one being lack of space in the court. Right now three different offices are embedded in one single room, and new additional buildings are needed. 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure
  • 81. A. Wakil Amini Deputy Attorney General for Administrative Affairs, AGO, Kabul Our country has been heavily damaged by three decades of war and, as a result, infrastructure and equipment have also greatly suffered from it. Yet, infrastructural recovery alone is not sufficient; it has to go hand in hand with the recovering and reconstruction also of the capacity of judicial institutions. Italy has supported us both through infrastructural and logistical support – by building offices for the Attorney General’s Office in several provinces, namely Faryab, Badghis, Jowzjan, Samangan, Parwan, Daykundi and Badakhshan and by purchasing equipment and 50 cars for our offices – as well as in providing training opportunities for our staff. Judge Rahamatullah Head of Injil District Court, Herat I was appointed in 2009 as head of this court. When I was working as a member of this court, prior to rehabilitation, the building was in very bad condition, its doors and windows were broken and there was not any piece of furniture in the rooms. We are very grateful to UNDP and Italy for renovating the court, because first of all it provided a clean and healthy environment for our administrative staff to work in. In addition, as for the general public benefiting from the court’s services, thanks to the rehabilitation work, it started to trust more in the government and its respect for us increased. In Afghan society, judges are respected figures: their working place and offices should therefore be decent environments, otherwise they will be disgraced. The court facilities were built long ago and now, due to the increase of staff, they need to be expanded. Also, this building does not have a courtroom which is the most essential requirement of a court. Having proper courtrooms allows the public to observe the trial processes. This will contribute to strengthening people’s conviction that the judiciary is well established and is there to maintain justice. It would also lessen the distance between the general public and the government and thus increase the level of trust of people in the judiciary. 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure 85
  • 82. Pictures of courts in several Afghan provinces that were renovated through Italian financing as part of the UNDP project Access to Justice at the District Level. Balkh Province prior to intervention after intervention Court in Dawlatabad (Balkh Province) . 86 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure
  • 83. Herat Province prior to intervention after intervention prior to intervention after intervention Court in Injil (Herat Province). prior to intervention Works in progress after intervention Court in Ghurian (Herat Province) 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure 87
  • 84. Pictures of judicial infrastructure built in several Afghan provinces through Italian financing as part of the IMG project Construction of Provincial Facilities and Procurement of Vehicles for Judicial Institutions in Afghanistan. Parwan Province outside inside Building for the Ministry of Justice and the Attorney General’s Office constructed in Parwan Province. 88 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure
  • 85. Jowzjan Province outside inside Building for the Ministry of Justice and the Attorney General’s Office constructed in Jowzjan Province. Daykundi Province outside inside Building for the Ministry of Justice and the Attorney General’s Office constructed in Daykundi Province. 2.3 Areas of intervention - Assistance to judicial institutions in the field of infrastructure 89
  • 86. 3. Prospects and challenges: what does the future hold?
  • 87. Rosario Aitala, Senior Adviser to Italian Foreign Minister – Crisis Areas and International Crime. Prospects and challenges: what does the future hold? By Rosario Aitala, Senior Adviser to Italian Foreign Minister – Crisis Areas and International Crime If we are to believe Aristotle, that to have a proper vision of things one must consider their development from the very beginning, then it will be necessary to begin here with the Bonn Agreement “on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions”, signed on 5 December 2001. In terms of judicial power, which had been the principal means used by the Taliban for suppressing liberty, the Agreement provided that this should “be independent and shall be vested in a Supreme Court of Afghanistan, and such other courts as may be established”, and that the justice system should be rebuilt “in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions”. These two bare expressions uncover those issues of extraordinary difficulty that were to be a constant presence throughout the past ten years of intensive work. Regarding the organization of the judicial power, where the Constitution placed the Supreme Court at the highest level, conceptual difficulties were to arise in view of guaranteeing, in a nascent democracy, the independence of a supreme judicial organ made up of members nominated by the chief of the Executive with the agreement of the parliamentary majority. And the arduousness, both theoretical and operational, of reconciling the heterogeneous nature of a Court with only nine members supposed to function simultaneously as the highest organ of the judicial hierarchy, the court of ultimate appeal, and the constitutional judge. A court thus invested at once with functions difficult to be 92 harmonized even in a mature and stable democracy: the ultimate interpretation of the law, the evaluation of the law’s conformity with constitutional principles, and the resolution of conflicts between the powers of the State. The second expression was a drastic oversimplification, product of the optimism of that time in which it was thought that questions and issues residing at the dark intersection of law, sociology, history and religion could be rapidly and definitively dealt with: as if by a stroke of a pen centuries of doctrinal debates, cultural heritage, historical experiences and ideological beliefs could be annulled. As if with a few strokes of the keyboard new and long life could be given in Afghanistan to the Western paradigm of a constitutional state of law (Rechtsstaat or État de Droit, more so than “Rule of Law”), sculpted by centuries of laborious evolution and blessed with perfect features: separation of powers and supremacy of fundamental rights with respect to all public powers. Complexities were ignored that would later reveal themselves in various ways: which “Islamic principles” are to be taken into account, considering that these are uniform neither in terms of time nor space? And which “Afghan legal traditions”, given that in this extraordinary country there are an uncountable number of these, one for each village, each presumably of equal worth? Finally, how to reconcile the principle of legality set forth in the Afghan Constitution and in international legal thinking held to be the citadel of liberty and guarantor of legal certainty, with the reference of this same constitutional charter and criminal code to the uncertain, and inherently arbitrary, application of Sharia jurisprudence? 3. Prospects and challenges: what does the future hold?
  • 88. This was the magnitude of the challenges that Italy and the international community found themselves confronting while assisting Afghan institutions. From the very beginning it has been Italy that most energetically supported the notion that institution building and a steady progression towards principles of justice, equality and legality were the absolutely essential prerequisites for establishing security and stability in Afghanistan. The deeper significance of the Italian message was that “the law matters”. It matters for building institutions and regulatory systems that respect and express culture and civilization, not in order to preserve but to advance, to move forward, beyond the stage of conflicts. It matters for building national legal systems of a global character. It matters because it allows us to measure ourselves, our own virtues and defects, and our ability to understand and converse with distant and different worlds. Such a perspective, whose level of acceptance waxed and waned over time, was in the end explicitly shared by the Afghan Government and the international community when working out the transition process that will lead to the handover at the end of 2014 of all of the institutional components at the base of Afghan state structures. The need to define an “efficient model for the consolidation of national institutions” while maintaining respect for local culture and traditions suggested methods of aid ever more commensurate with the requirements and the specificity of individual local communities. Accordingly, Italy has chosen to develop an increasingly decentralized approach, in which it seeks to respond to the needs of officials working directly at the regional level. The institutional laboratory for this innovative supporting approach will be Herat province, where since the beginning there has been a Provincial Reconstruction Team (PRT) operating under Italian leadership. The economic importance of this border province and the professionality of the officials working there have permitted significant institutional progress to take place, particularly in the justice sector which is generally agreed to have achieved a quality level substantially above the average for the country. It is our hope that an efficient “local justice system” can be developed that will serve both as example and stimulus for other areas of the country. The philosophy of Italian assistance has been fundamentally rooted in the respect for the sensitivities, the history and the legal culture of the country and its individual regions. Accordingly, the Italian contribution has been directed not only to the Office of the Prosecutor and the Courts but also to the local departments of the Ministry of Justice which are tasked to manage the interaction with the traditional justice systems. Traditional instruments of conflict resolution offer advantages that are also recognized by the systems of extrajudicial mediation that are now being developed in Western countries; moreover, they prevent social conflicts and benefit from a very wide social acceptance. The aim is to give formal legal authority on the part of the State to these decisions, provided that they are limited to specific cases of minor importance, and that the full respect of fundamental rights is guaranteed. The pages above have illustrated the important and varied contributions that have resulted from the Italian involvement. A unifying element is that both the activities aimed at strengthening judicial institutions as well as those focusing on training magistrates and other actors involved in the legal process have been premised on the supremacy of fundamental rights, particularly those of the weakest, women, children, the indigent, and those who are persecuted for their thoughts, their beliefs or their personal status. We firmly believe in a future of peace and development for this country. For this to come about at least three conditions will have to be fulfilled. The priority accorded to institution building at the very top of the transition agenda must be maintained: economic progress, political stability, security and social development are indissolubly linked to the existence of institutions and public places where the interests of all citizens are genuinely represented and treated with impartiality. Understanding and respect for all cultures must go hand in hand with the supremacy of fundamental rights, of dignity and of individual equality – this is a heritage not of Western culture but of all humanity. A process of profound political maturation must take place in the country, so that traditional social structures of a family or tribal nature can give way to representative organizations, political parties, trade unions, free associations, institutions: the heart and soul of democracy. An effort must be made to synchronize the different pace of political, social and cultural processes with that of national politics of countries involved in Afghanistan, who after the transition must continue to provide support to Afghan institutions. Francis Bacon once wrote that when undertaking difficult tasks one should not look to sow and reap all at once, but must instead prepare things and then wait for them to ripen by degrees. Time, patience and true determination are the ingredients that will be required for dealing with the challenge that awaits the Afghan people. 3. Prospects and challenges: what does the future hold? 93
  • 89. 4. Annexes
  • 90. Multilateral contributions to the justice sector from 2002 to 2010 Organization YEAR AID Title UNDP 2002 AID 7304/01/0 Afghan Interim Authority Fund IDLO 2002 AID 7613/01/2 Afghanistan Justice System Trust Fund UNODC 2002 UNODC 2002 OHCHR 2002 UNDP 2002 UNIFEM 2002 IDLO 2003 AID 7613/01/2 Afghanistan Justice System Trust Fund UN Office Vienna 2003 AID 7652/01/3 UNDP 2003 UNDP 2003 UNDP 2003 UNODC 2003 Capacity building for drug and crime prevention Technical support for the implementation n.a. of the ODCCP strategy in Afghanistan Establishment of Afghanistan Independent n.a. Human Rights Commission Operating expenses of the Judicial Reform n.a. Commission Strategy for women and human rights in AID 7306/01/4 Afghanistan n.a. Government of Afghanistan program in cooperation with the CICP Rebuilding the Justice Sector in AID 7653/01/5 Afghanistan Consolidated Appeal for Afghanistan 2003 AID 7744/04/1 – UNDP voluntary contribution Consolidated Appeal for Afghanistan 2003 AID 7744/07/4 – UNDP voluntary contribution n.a. AMOUNT DISBURSED € 3,505,862.22 € 600,000.00 € 700,000.00 € 250,000.00 € 300,000.00 € 300,000.00 € 2,582,644.63 € 1,500,000.00 € 2,000,000.00 € 2,750,000.00 € 3,000,000.00 € 2,000,000.00 Alternative livelihoods € 550,000.00 € 700,000.00 UNICEF IDLO 2004 AID 7613/01/2 Afghanistan Justice System Trust Fund € 2,000,000.00 UNODC 2004 AID 7744/08/5 Consolidated Appeal for Afghanistan € 1,500,000.00 UNODC 2004 AID 8056/01/6 UNODC 2004 n.a. UNODC 2004 n.a. OHCHR 96 2003 Support the reform of the juvenile justice sector and the development of a childAID 7744/01/5 right based legislative framework in Afghanistan 2004 n.a. Prison System Reform in Afghanistan – Extension to the Provinces Paris Pact Initiative for countries affected by drug trafficking from Afghanistan Alternative development capacity building at national and regional level Institutional strengthening of the Afghanistan Independent Human Rights Commission 4. Annexes € 5,000,000.00 € 500,000.00 € 300,000.00 € 100,000.00
  • 91. 4. Annexes 97
  • 92. Bilateral contributions to the justice sector from 2002 to 2010 Organization YEAR AID DGCS 2002 AID 7436/02/6 DGCS 2003 AID 7436/01/5 DGCS 2004 AID 7436/01/5 DGCS 2004 AID 7857/01/0 DGCS 2004 AID 7915/02/5 DGCS 2004 AID 7915/02/5 DGCS 2005 AID 7436/01/5 DGCS 2005 AID 7436/02/6 DGCS AID 7857/01/0 DGCS 2006 AID 7436/01/5 DGCS 2006 AID 7436/02/6 DGCS 2006 AID 7857/01/0 DGCS 2007 AID 7436/01/5 DGCS 98 2005 2007 AID 7436/02/6 Title Rehabilitation and support of the Afghan justice and prison system – locally managed funds* Rehabilitation and support of the Afghan justice and prison system – experts’ funding Rehabilitation and support of the Afghan justice and prison system – experts’ funding Afghanistan – support of judicial structures and organizations in the Kabul area and other localities in the country Preparation of a handbook of commentaries on the Afghan criminal procedure code Preparation of a handbook of commentaries on the Afghan criminal procedure code Rehabilitation and support of the Afghan justice and prison system – experts’ funding Rehabilitation and support of the Afghan justice and prison system Afghanistan – support of judicial structures and organizations in the Kabul area and other localities in the country Rehabilitation and support of the Afghan justice and prison system – experts’ funding Rehabilitation and support of the Afghan justice and prison system – locally managed funds* Afghanistan – support of judicial structures and organizations in the Kabul area and other localities in the country Afghanistan – support of judicial structures and organizations in the Kabul area and other localities in the country Rehabilitation and support of the Afghan justice and prison system – locally managed funds * 4. Annexes AMOUNT DISBURSED € 560,000.00 € 428,698.61 € 550,966.58 € 644,000.00 € 45,000.00 € 3,825.00 € 708,848.33 € 900,000.00 € 135,662.10 € 613,615.79 € 725,000.00 € 9,405.10 € 558,239.70 € 810,000.00
  • 93. Organization YEAR AID DGCS 2008 AID 7436/01/5 DGCS 2009 AID 7436/01/5 DGCS 2009 AID 7436/02/6 DGCS 2010 AID 7436/01/5 DGCS 2010 AID 7436/02/6 Universities of Perugia and Tor Vergata (Rome) 2010 AID 9420/01/4 DCGS 2011 AID 7436/02/6 Title Rehabilitation and support of the Afghan justice and prison system – experts’ funding Rehabilitation and support of the Afghan justice and prison system – experts’ funding Rehabilitation and support of the Afghan justice and prison system – locally managed funds* Rehabilitation and support of the Afghan justice and prison system – experts’ funding Rehabilitation and support of the Afghan justice and prison system – locally managed funds* Alta formazione in discipline legali per l'Afghanistan (“Higher Education Program in Legal Disciplines for Afghanistan”) Rehabilitation and support of the Afghan justice and prison system – locally managed funds* Total AMOUNT DISBURSED € 839,842.35 € 598,159.61 € 258,890.00 € 384,459.15 € 491,000.00 € 312,191.58 € 134,000.00 € 9,711,803.90 * Funds directly managed by the Local Technical Unit in support of bilateral projects 4. Annexes 99
  • 94. 5. Glossary
  • 95. Glossary Afghanistan Compact: Political agreement in 2006 between the Afghan Government and the international community that identified three pillars of the reconstruction (Security; Governance, Rule of Law and Human Rights; and Economic and Social Development) and also marked the beginning of the reorganization of the justice sector. Interim Afghanistan National Development Strategy (i-ANDS): Presented to the 2006 London Conference, this established guidelines for the achievement of a global Afghan reconstruction strategy. Pages 22 and 23 Pages 22 and 23 Afghanistan National Development Strategy: This is the national development strategy for Afghanistan presented at the 2008 Paris Conference which, representing the principal frame of reference for all reconstruction activities, marked the passage from the post-Bonn administration to a duly elected Government and Parliament in full exercise of their functions. Pages 22 and 23 Afghanistan Reconstruction Trust Fund (ARTF): Financed by contributions from 27 donor countries and administered by the World Bank. Pages 24 and 25 Joint Coordination and Monitoring Board (JCMB): A coordinating and monitoring commission established by the Afghanistan Compact for overall strategic coordination of the implementation of the reform process, and for resolving problems arising from its implementation. Pages 22 and 23 Judicial Commission: This was established by the Bonn Agreement and given the responsibility for reconstructing the justice system in accord with Islamic principles, international standards, the rule of law and Afghan traditions. It was initially created in May 2002, subsequently dissolved and then re-established in November of that same year as the Judicial Reform Commission. It was definitively abolished in 2005 Bonn Agreement: The Bonn Agreement (“Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions”) of 5 December 2001, the first in a series of agreements on Afghan reconstruction, approved the formation of an interim government to manage the transition process, and also established an interim justice system and transitory measures leading towards the issuing of a new Constitution and the carrying out of general elections in 2004. Pages 20 and 21 Pages 20 and 21 Justice Sector Reform Project (JSRP): Managed and carried out by Afghan institutions and financed through the Afghanistan Reconstruction Trust Fund (ARTF), with total contributions of more than $27 million (for the period 2008-2011). Justice for all: Document adopted in 2005, which represented an initial medium-term development strategy for the justice sector prepared by the Afghan Government in collaboration with the Ministry of Justice, the Attorney General’s Office and the Supreme Court. Pages 22 and 23 Pages 24 and 25 102 5. Glossary
  • 96. National Development Framework: A 2002 document that outlined a general framework for national development and a specific strategy for Afghan reconstruction, based on three pillars: 1. the use of humanitarian assistance and social policy to create the conditions for people to live secure lives; 2. the use of external assistance to build the physical infrastructure as a basis for the private sector; 3. the creation of sustainable growth through a competitive private sector that will serve both as the engine of growth and the instrument of social inclusion. National Justice Sector Strategy: A five-year strategy for development of the justice sector, which for the first time addresses the issue of Afghan justice sector reform through a systems approach to the programming and planning of reconstruction activities. It also represents one of the individual sector strategies attached to the Afghanistan National Development Strategy (ANDS) presented to the 2008 Paris Conference. Pages 20 and 21 National Priority Programs (NPPs): Short- and medium-term (“quick impact”) programs presented by the Afghan Government at the 2010 London Conference. Provincial Reconstruction Team (PRT) of Herat: The Herat PRT contributes to reconstruction activities at the provincial level by means of its professional support, both of a civil and military nature, in carrying out reconstruction and emergency interventions throughout the province. Pages 28 and 29 Page 37 National Justice Program (NJP): The NJP is the implementation arm of the National Justice Sector Strategy (NJSS) and translates into operational terms the subprograms relating to the different reform activities. These are in turn implemented through individual bilateral projects of donor organizations and countries and via the Justice Sector Reform Project (JSRP). United Nations Assistance Mission in Afghanistan (UNAMA): The UN mission in Afghanistan, whose mandate has been extended until March 2012 by UN Security Council Resolution 1974 (2011), has the task of promoting peace and stability through its direction of the efforts of the international community. Together with the Afghan Government, it supports the country’s reconstruction and process of democratic consolidation. Pages 24 and 25 Pages 24 and 25 Page 22 Acronyms AIBA = Afghan Independent Bar Association ANDS = Afghanistan National Development Strategy ARTF = Afghanistan Reconstruction Trust Fund ASCHIANA = Afghanistan’s children - A new approach CLRWG = Criminal Law Reform Working Group DGCS = Direzione Generale per la Cooperazione allo Sviluppo DPKO = Department of Peacekeeping Operations i-ANDS = Interim Afghanistan National Development Strategy IDLO = International Development Law Organization IJPO = Italian Justice Program Office (Ufficio Italiano Giustizia) INLTC = Independent National Legal Training Center ISISC = Istituto Superiore Internazionale di Scienze Criminali JCMB = Joint Coordination and Monitoring Board JSRP = Justice Sector Reform Project LAOA = Legal Aid Organization for Afghanistan NJP = National Justice Program NJSS = National Justice Sector Strategy NPP = National Priority Program PJCM = Provincial Justice Coordination Mechanism PRT = Provincial Reconstruction Team UNAMA = United Nations Assistance Mission in Afghanistan OHCHR = Office of the High Commissioner for Human Rights (Ufficio dell’Alto Commissariato per i diritti umani) UNIFEM = United Nations Development Fund For Women, oggi UN- Women WB = World Bank IMG = International Management Group UNODC = United Nations Office on Drugs and Crime UNDP = United Nations Development Programme UNICEF = United Nations Children’s Fund UNOPS = United Nations Office for Project Services 5. Glossary 103