Italy and the rebirth of the afghan justice system

811 views

Published on

Published in: News & Politics
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
811
On SlideShare
0
From Embeds
0
Number of Embeds
72
Actions
Shares
0
Downloads
8
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Italy and the rebirth of the afghan justice system

  1. 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. 2. Italy and the Rebirth of the Rule of Law in Afghanistan The Italian contribution to justice reform over the decade 2001-2011
  3. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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

×