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Afghanistan Implementing Alternatives to Imprisonment, in Line with International Standards and National Legislation

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Afghanistan Implementing Alternatives to Imprisonment, in Line with International Standards and National Legislation Vienna International Centre, PO Box 500, 1400 Vienna, Austria Tel.: (+43-1) 26060-0, Fax: (+43-1) 26060-5866, www.unodc.org Afghanistan Implementing Alternatives to Imprisonment, in line with International Standards and National Legislation Printed in Austria V.08-53816—August 2008—500 UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna Afghanistan: Implementing Alternatives to Imprisonment, in line with International Standards and National Legislation Assessment Report UNODC Project: Prison System Reform in Afghanistan— Extension to Provinces (AFG/R87) May 2008 UNITED NATIONS New York, 2008 ACKNOWLEDGMENTS The assessment was prepared for the United Nations Office on Drugs and Crime (UNODC) by Tomris Atabay and Paul English, independent consultants on criminal justice issues. The authors undertook a two-week mission to Kabul in December 2007, organized by the UNODC Country Office Afghanistan, and were assisted by UNODC staff throughout the mission in Kabul. Key contributions to the mission and assessment were provided by Matteo Pasquali, Sayed Afzal Sherzad, Nazar Ahmad Shah, Radifullah Hamid, Jehanzeb Khan, Agnieszka Klonowiecka-Milart, Michael Hartmann and Shukria Noori. Interpreting and translations were undertaken by Zaheer Ahmad Dauwer. Also contributing throughout the assessment was Andrea Mancini, UNODC Vienna. The views expressed in this assessment do not necessarily reflect the policies or positions of the United Nations Office on Drugs and Crime. Contents Page LIST OF ACRONYMS AND ABBREVIATIONS ..................................... v EXECUTIVE SUMMARY ....................................................... vii 1. INTRODUCTION ......................................................... 1 2. CONTEXT ............................................................. 5 3. LEGISLATIVE FRAMEWORK: LAW AND PRACTICE . 9 3.1 Overview: Legislation . 9 3.2 Analysis: Legislation and practice . 10 3.2.1 Diversion from prosecution..................................... 11 3.2.2. Alternatives to pre-trial detention . 12 3.2.3 Alternatives to imprisonment and other measures applied to convicted offenders............................................ 14 3.2.4 Post-sentencing alternatives . 16 4. SPECIAL CATEGORIES . 19 4.1 Offenders with mental healthcare needs . 19 4.2 Drug users . 22 4.3 Women . 27 4.3.1 Sentences received by female offenders .......................... 28 4.3.2 Offences committed by women . 29 4.4 Juveniles ........................................................... 30 4.4.1 Diversion from the criminal justice process....................... 31 4.4.2 Pre-trial detention............................................. 32 4.4.3 Alternatives to imprisonment ................................... 32 4.4.4 Juveniles with mental healthcare needs . 33 4.4.5 Juveniles with drug dependency ................................. 33 4.4.6 Pregnant girls................................................. 34 4.4.7 Children in need of protection .................................. 34 4.4.8 Practice: Pre-trial detention and sentences received by juveniles . 35 4.4.9 Offences committed by juveniles ................................ 36 4.4.10 Drug use among juvenile boys .................................. 39 4.5 First-time offenders: Pilot review of adult male prisoners in Pul-e Charki Prison, Kabul ....................................................... 40 5 INFORMAL JUSTICE SYSTEM AND DISPUTE RESOLUTION.................... 45 iii Page 6. THE CAPACITY OF THE CRIMINAL JUSTICE SYSTEM TO RESPOND TO THE NEEDS OF OFFENDERS.................................................. 51 6.1 Criminal procedure and legal aid...................................... 51 6.2 Prisons . 54 6.2.1 Health in prisons . 57 6.2.2 Women in prison . 59 6.2.3 Juveniles ..................................................... 61 7. SOCIAL AND HEALTH CONSEQUENCES OF PRISONS . 63 8. STATE AND COMMUNITY CAPACITY TO RESPOND TO THE REHABILIATION NEEDS OF OFFENDERS.................................................. 67 8.1 Mental health services in the community............................... 67 8.2 Drug treatment in the community ..................................... 68 8.3 Services for women.................................................. 69 8.4 Services for juveniles . 70 9. A SECTOR-CENTRED REFORM PROCESS................................... 71 10. CONCLUSIONS AND RECOMMENDATIONS................................. 73 Appendix 1: Recommendations on amendments to the Counter Narcotics Law ..... 89 Appendix 2: Principles of drug dependence treatment, discussion paper, UNODC, WHO, March 2008, Principle 6: addiction treatment and the criminal justice system . 93 Appendix 3: Sample questionnaire: adult male prisoners, Kabul .................. 95 Appendix 4: Working group on alternatives to prison (WGAP): suggested next steps 101 iv List of acronyms and abbreviations AIHRC Afghanistan Independent Human Rights Commission ANDS Afghanistan National Development Strategy AWEC Afghan Women’s Educational Centre AWJA Afghan Women Judges Association CANADEM Canadian International Development Agency CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CG Consultative Group CNL Counter Narcotics Law CPC Criminal Procedure Code CPD Central Prison Department CRC Convention on the Rights of the Child CSSP United States Corrections System Support Program ICCPR International Covenant on Civil and Political Rights ICPC Interim Criminal Procedure Code ILF International Legal Foundation MoE Ministry of Education MoI Ministry of Interior MoJ Ministry of Justice MoLSAMD Ministry of Labour, Social Affairs, Martyrs and Disabled MoPH Ministry of Public Health MoWA Ministry of Women’s Affairs NJSP National Justice Sector Programme NJSS National Justice Sector Strategy UNAMA United Nations Assistance Mission in Afghanistan UNDP United Nations Development Programme UNICEF United Nations Children’s Fund UNIFEM United Nations Development Fund for Women UNODC United Nations Office on Drugs and Crime UNOPS United Nations Office of Project Services WHO World Health Organization v Executive summary 1. The current assessment forms part of UNODC’s programme to extend penitentiary reform to the provinces of Afghanistan (AFG/R87), building on the UNODC penitentiary reform project ongoing in Afghanistan since 2003 (AFG/R41). The project includes the introduction of initia- tives to increase the use of alternatives to prison, in line with the recommendations of inter- national standards, to complement a range of other activities focusing on the infrastructural, normative and operational priorities in the penitentiary system. 2. The assessment provides a review of existing legislation, in terms of their provisions for non-custodial measures and sanctions, with particular focus on the provisions for offenders with mental healthcare needs, drug users, women, juveniles and first time non-violent offenders. It analyses information gathered in Kabul, as regards offences committed by some of these groups and sentences received, with a view to assessing the application of existing provisions for alter- natives and potential for expanding the use of non-custodial sanctions and measures. It reviews the capacity of criminal justice institutions and services in the community, provided by the State and NGOs, to implement and support non-custodial measures and sanctions. It comments on the current discussion on forming links with the informal justice structures for diversion from the criminal justice system. Finally, it puts forward a series of recommendations to increase the implementation in practice of existing alternatives to prison, to expand non-custodial measures and sanctions in legislation, and to initiate practical steps to ensure that legislation is applied, and applied to enhance the social reintegration prospects of offenders. The assessment and recommendations are guided by international instruments, including: the International Covenant on Civil and Political Rights; United Nations Standards Minimum Rules for the Treatment of Prisoners; United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules); United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules); United Nations Principles for the protection of persons with mental illness and the improvement of mental healthcare (Mental Illness Principles) and United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The assessment has been prepared in the context of priorities and goals set by the Afghanistan Compact, within the overall framework of the Afghanistan National Development Strategy (ANDS), and decisions taken at the Justice and Rule of Law Conference held in Rome in July 2007. 3. This study should be regarded as an introductory assessment as regards practice in the implementation of non-custodial measures and sanctions in particular, as interviews were limited to Kabul and to a relatively small number of practitioners. In addition, some essential information, such as crime and sentence statistics nationwide (with the exception of juveniles) was not available. Therefore thorough and comprehensive research is included as one of the key recommendations of this document in section 10, in order to form a clear picture of the composition of the current prison population and obstacles to the implementation of alterna- tive measures and sanctions in practice, prior to the development of a strategy and programme to introduce alternatives to prison in Afghanistan. vii Afghanistan:
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