Committee against Torture
Forty-fourth session
26 April–14 May 2010
List of issues prior to the submission of the second periodic report of Afghanistan (CAT/C/AFG/2) *
Specific information on the implementation of articles 1 to 16 of the Convention, including with regard to the Committee’s previous recommendations
Articles 1 and 4
1.According to paragraph 143 of the core document (HRI/CORE/AFG/2007),** a prohibition of torture is contained in article 29 of the Constitution of Afghanistan. Please indicate whether the specific crime of torture is incorporated into penal law; if so, please detail how the elements of torture in the Penal Code meet all the elements of article 1 of the Convention. Please also describe steps taken by the State party to ensure that torture is made punishable by appropriate penalties which take into account its grave nature, in accordance with the requirements of article 4, paragraph 2, of the Convention.
2.Please provide detailed information on current criminal provisions concerning offences such as attempted acts of torture, instigation or consent of torture or the order to commit torture by a person in authority and the exact penalties imposed for any of these offences. Please provide information on the number and the nature of the cases (including geographical location of the offences prosecuted) in which those legal provisions were applied, as well as on the penalties imposed or the reasons for acquittal.
3.Please clarify the status of the Convention in the domestic legal system. Have the rights contained in the Convention been invoked by national courts, either as a ground for a case or as interpretative guidance for legal norms (paras. 142 and 148–151)?
Article 2 ***
4.Please provide detailed information on steps taken by the State party to guarantee the rights of all detained persons from the very outset of their detention, including prompt access to defence counsel (including ex officio defence counsel), access to independent medical examination or an independent doctor, and the right to inform a relative, to be informed of their rights and to be promptly presented to a judge. Please also provide information on any restrictions that may be imposed on these rights and the reasons for such restrictions. How does the State party ensure that such rights are implemented in practice in all cases, including in respect of cases concerning persons suspected of crimes against national security? Please indicate whether all persons detained are registered from the very outset of detention.
5.Please detail the legal provisions that limit the amount of time a detainee may be held in pre-indictment and pretrial detention. How does the State party ensure that these laws are implemented in practice? What steps has the State party taken to eliminate post-sentence detention? In particular, please describe in detail the State party’s new criminal-case management system, the resources and number of personnel committed to the system, and the State party’s progress in implementing the system.
6.The core document states that the Legal Assistance Department of the Supreme Court provides legal aid to those who cannot afford a defence lawyer in criminal cases (para. 156). The core document also indicates that, in 2002, legal aid was provided to 66 people in 22 criminal cases and, in 2006 1,765 individuals were provided with legal aid in 650 cases. Please elaborate on the legal aid system implemented by the State party, including updated information on the functioning and financing of the system and its geographical coverage.
7.Please comment on reports of widespread arbitrary and illegal detention, including for customary practices, breach of Sharia law and civil disputes. Please also provide information on measures taken to ensure that incommunicado detention is explicitly and strictly regulated by law, and only used as an exceptional measure.
8.Please provide information on continuous reports concerning cases of torture and ill-treatment of detainees held by the Afghan authorities, including the use of torture by the National Directorate of Security and the Afghan National Police. What measures have been taken to prevent such acts? Has the State party publicly announced that such acts will not be tolerated and that perpetrators will be punished? Have any investigations or trials taken place, and if so, what was the outcome thereof?
9.Please inform the Committee of measures taken or envisaged by the State party to regulate the growing number of Afghan and international private military security companies. Please inform the Committee which system of military courts is competent for alleged cases of torture and inhuman treatment and explain how the State party determines if the body responsible for exercising jurisdiction is civil or military.
10.Please provide more information on non-State dispute resolution institutions (paras.114–122 and 135). The core document states that, at their worst, some traditional forums perpetuate gross human rights abuses, such as forced marriage and extrajudicial killing (para. 114). Reports received by the Committee also indicate that the traditional dispute resolution mechanisms often fail to respect even the most basic human rights standards, especially with regard to women and girls, and that a particular concern is the practice of baad, the giving away of girls as a form of dispute resolution to settle feuds and murder cases. Please elaborate on such statements and reports and provide information on measures adopted to ensure the compliance of the dispute resolution mechanisms with the provisions of the Convention.
11.Please provide information on measures in place to fully ensure the independence of the judiciary in the performance of their duties in conformity with international standards, notably the Basic Principles on the Independence of the Judiciary. Please specify how judges are selected and whether they have security of tenure. What measures have been adopted to build the population’s trust in the formal justice system, including in the context of the Justice Sector Reform Programme and the Government’s 10-year national strategic framework “Justice for All”? Please provide information on the number of female judges and prosecutors and clarify whether female judges can serve and address the same jurisdiction as male judges. Has the State party developed and implemented educational programmes for judges to provide training in international human rights law and its implications for interpreting domestic laws and to ensure that judges can effectively enforce the rights and obligations in the Convention?
12.Please indicate the measures taken to combat and prevent corruption at all levels of Government, including in the administration, the judiciary and law enforcement. In this relation, please provide detailed information on the activities of the Anti-corruption Commission and the results of such activities in reducing the level of corruption. Please provide data on prosecution for corruption charges and the outcome of these proceedings.
13.Please provide additional information on the composition, activities and achievements of the Afghan Independent Human Rights Commission (AIHRC), established by Presidential Decree on 6 June 2002 and responsible for monitoring human rights, investigating violations of human rights, and strengthening respect for and enforcement of human rights among domestic institutions. According to the core document, article 58 of the Constitution gives AIHRC competence to handle human rights complaints (paras. 153 and 168–171). Please provide statistics on the number and types of complaints received by the Commission and the outcome of any complaints of torture and ill-treatment. Please also provide information on the human and financial resources allocated for the Commission’s effective functioning and indicate whether the State party provides for a minimum allocation in the national budget for the funding of AIHRC, in addition to external sources of funding. Please indicate whether this funding is part of the discretionary spending or is allocated each year without a separate vote. Furthermore, please provide information about the composition and activities of the new Specialized Investigations Team established within AIHRC for its activities related to the most serious conflict-related violations of international humanitarian law and human rights law. Please also comment on reports that the chair of AIHRC, Dr. Sima Simar, was forced to resign her post as Deputy Prime Minister and Minister for Women’s Affairs following death threats.
14.According to the core document, a human rights unit has been established within the Ministry of Interior and human rights focal points have been set up in each province of Afghanistan (para. 173). Please provide more information about the composition and activities of the human rights unit and the activities of the human rights focal points, as well as their achievements in the promotion and protection of human rights. What is the relationship of the human rights unit vis-à-vis AIHRC?
15.Information received by the Committee indicates that: a significant number of detainees are being held at the United States-run Bagram military airbase; some have been detained for several years and denied their rights to due process, including access to a lawyer and habeas corpus review; and children have been detained incommunicado. What steps are being taken by the State party to ensure effective, independent and systematic supervision and monitoring of all places of detention, including those that are not under its jurisdiction, particularly if such places are under the control of the Coalition Forces? Furthermore, please provide information on any investigations into the allegations concerning the deaths in containers of hundreds or even thousands of Taliban fighters who had surrendered to the United States-backed Northern Alliance in late 2001.
16.Please provide updated information on any new legislation and/or measures adopted to prevent and combat trafficking in women, men and children, including for sexual purposes, and to provide assistance to the victims. Please elaborate on the implementation of these measures, including resources available, and provide information on the impact and effectiveness of the implemented measures in reducing cases of human trafficking. What is the status of the bill on human trafficking referred to in paragraph 147 of the core document? Please also provide statistical data on the number of women, men and children who have been trafficked to, from and through Afghanistan since the consideration of the State party’s initial report and statistical data on the number of complaints relating to human trafficking, and on the related investigations, prosecutions, convictions and sanctions, as well as compensation provided to victims. Furthermore, please provide information on specific training and sensitization programmes on human trafficking developed by the State party for law enforcement personnel and the outcome of these programmes.
17.Information before the Committee states that women suffer from high rates of domestic violence and do not have recourse to legal protection. Please provide updated information on measures, including legislative ones, taken by the State party to combat various forms of violence against women, including domestic violence, to investigate all allegations of ill-treatment and abuse and to protect the victims. Is domestic violence criminalized under the legislation of the State party? Please elaborate on the protection provided to victims of such acts, including access to medical, social and legal services and temporary accommodation or shelters. Please provide data on the number of victims that have received such protection and specify the form of protection that they received.
18.Please comment on reports that women in Afghanistan are subjected to numerous forms of physical and psychological violence, such as forced and early marriage, physical abuse, rape and other forms of sexual violence, honour killing and other forms of violence. Please also comment on allegations that the Shia Personal Status Law legitimizes discriminatory practices against women and provide information on any steps taken by the State party to review and/or repeal this law to ensure its compliance with international human rights standards. Please provide information on the status and content of the Law on the Elimination of Violence against Women and the content and implementation of the National Action Plan for the Women of Afghanistan.
19.Please inform the Committee whether legislation prohibiting torture and cruel, inhuman and degrading treatment contains specific provisions regarding gender-based breaches of the Convention, including sexual violence. Please also describe all, if any, effective measures taken to monitor the occurrence of and prevent such acts, and please provide data, disaggregated by sex, age and ethnicity of the victims, and information on investigation, prosecution and punishment of perpetrators of such acts. What procedures for complaints regarding violence in detention are in place and what are the results? Are these procedures known and available to detainees, including the ability to file complaints without fearing reprisals?
20.According to information before the Committee, the Afghan Civil Law sets the minimum age for marriage at sixteen for girls and eighteen for boys. However, a 15-year-old girl may marry with her father’s approval or with a positive ruling from the competent court. Reports before the Committee state that forced and early marriages are widespread in the country (nearly 60 per cent of marriages in Afghanistan involve girls below the legal age of 16 and some girls are married as young as 9) and that the negative consequences of such practice include suicides and psychological disorders, as well as an increase in maternal and child mortality rates. Please provide information on any legislative measures taken to raise the minimum age of marriage for girls, in line with article 1 of the Convention on the Rights of the Child, which defines a child as being below the age of 18, and the provision on child marriage in article 16, paragraph 2, of the Convention on the Elimination of All Forms of Discrimination against Women. Please also provide information on other measures taken toprevent and combat such practice, which amounts to violence against these girls and inhuman or degrading treatment, and is thus in breach of the Convention.
21.According to information before the Committee, women who seek to flee abusive marriages are often detained and prosecuted for alleged offences such as “home escape” or “moral” crimes that are not provided for in the Penal Code. Please provide information on legislative or other measures taken by the State party to ensure protection for these women.
22.Please comment on reports of sexual violence committed against girls and boys, including in the context of the armed conflict, and describe the steps taken to prevent, monitor, investigate and punish such acts of sexual violence. What measures are in place or envisaged by the State party to address the phenomenon of “Bacha bereesh” (beardless boys) in Northern Afghanistan?
Article 3
23.Please provide information on any steps taken by the State party to ensure that it fulfils all its non-refoulement obligations under article 3 of the Convention, in particular to consider all elements of an individual case, and provides, in practice, all procedural guarantees to the person expelled, returned or extradited. Regarding the expulsion, return and extradition of persons to another State, please inform the Committee of the competent authorities, existing legal safeguards and the procedures for appeal, and whether these have suspensive effect. Please specify the provisions of national law that codify the principle of non-refoulement and related legal protections and procedures. Please also provide detailed information on all decisions taken in this respect and other return cases relevant to article 3 of the Convention and on the criteria for such decisions. Please include the number of cases, the countries to which persons were returned and details of whether there were any cases where return/extradition was refused because of a risk of torture and, if so, to which countries.
24.Please provide information on allegations transmitted by the Special Rapporteur on torture, concerning the transfer by Afghan authorities of non-Afghan suspects to officials of a foreign Government operating in Afghanistan, in whose custody they were allegedly tortured. How does the State party ensure that it fulfils its obligation under article 3 when transferring these suspects?
25.Please indicate whether the State party relies on diplomatic assurances to return persons to countries known for practicing torture. If so, please provide detailed information on:
(a)The procedures in place for obtaining diplomatic assurances;
(b)Steps taken to establish a judicial mechanism for reviewing, in last instance, the sufficiency and appropriateness of diplomatic assurances in any applicable case;
(c)Steps taken to guarantee effective post-return monitoring arrangements;
(d)All cases where diplomatic assurances have been provided, since the consideration of the initial report;
(e)Assurances that have not been honoured and on appropriate actions taken in such cases by the State party.
Articles 5, 7, 8 and 9
26.Please indicate whether the State party has provided diplomatic assurances and include the number of such assurances and the countries to which they were made.
27.Please explain to the Committee how the State party establishes its own jurisdiction over persons accused or indicted of being responsible for torture elsewhere.
28.Since the examination of the initial report, please indicate whether the State party has rejected, for any reason, any request for extradition by another State of an individual suspected of having committed an offence of torture, and has started prosecution proceedings as a result. If so, please provide information on the status and outcome of such proceedings. In any such cases, please also indicate which sections of the Afghan Penal Code were affected or abridged.
Article 10
29.Please provide information on educational and training programmes developed by the State party to ensure that law enforcement personnel, border guard staff, penitentiary staff and staff of detention centres, all members of the judiciary and prosecutors are fully aware of the State party’s obligations under the Convention, that breaches will not be tolerated and will be investigated and that any offenders will be prosecuted. Furthermore, please indicate if the State party has developed amethodology to assess the effectiveness and impact of training/educational programmes on the reduction of cases of torture, violence and ill-treatment and, if so, please provide information on the content and implementation of such methodology and on the results of the implemented measures.
30.Please provide detailed information on training programmes for prosecutors, judges, forensic doctors and medical personnel dealing with detained persons, to detect and document physical and psychological sequelaeof torture. Do such programmes include specific training with regard to the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol)?
Article 11
31.Please describe the procedures in place for ensuring compliance with article 11 of the Convention and provide information on any new interrogation rules, instructions, methods and practices, as well as arrangements for custody, that may have been introduced since the consideration of the initial report. Please also indicate the frequency with which these are reviewed and by whom. Please describe further steps taken by the State party to ensure effective, independent and systematic supervision and monitoring of detention facilities and inform the Committee of any rules that would prohibit investigations, visits by international bodies or mechanisms, or other forms of human rights scrutiny.
32.Please inform the Committee of the number, location, capacity, and occupancy rates of prisons and detention facilities in the country. For each facility, please specify its type (i.e., juvenile, women, pretrial detention, etc.). Please comment on reports of an exponential increase in the population of detention facilities and that almost none of the prisons, detention centres, holding cells and correctional centres conform to international human rights standards. Please also elaborate on measures undertaken by the State party, as well as material, human and budgetary resources made available, to improve conditions in all detention facilities and ensure that they conform to minimum international standards.
33.Please provide detailed information on the application of alternative forms of punishment. This information should include, inter alia, which alternative forms of punishment are used and in how many cases they have been used. Please provide detailed data on the impact and effectiveness of these measures in improving prison conditions. Is corporal punishment prohibited in prisons?
34.Please indicate steps taken to adequately prevent and combat inter-prisoner violence in places of detention. Please indicate if whenever injuries are recorded by a doctor which are consistent with allegations of inter-prisoner violence, the matter is immediately brought to the attention of the relevant prosecutor and a preliminary investigation is initiated by him or her. Do prisoners have the right to report such occurrences motu proprio? Furthermore, information should be provided on measures taken to prevent, investigate, prosecute and punish persons found responsible. Please also provide data on the impact and effectiveness of these measures in reducing cases of inter-prisoner violence.
Articles 12 and 13
35.Please provide detailed information on steps taken to establish an effective system to compile statistical data relevant to monitoring the implementation of the Convention at the national level, including complaints, investigations, prosecutions, convictions and punishments of cases of torture and ill-treatment, trafficking, and domestic, sexual and ethnically motivated violence and discrimination, as well as on compensation and rehabilitation provided to the victims.
36.Please provide information on measures taken to ensure that all allegations of torture and ill-treatment are promptly, effectively and impartially investigated and that the perpetrators are prosecuted, in addition to receiving disciplinary penalties if applicable, and sentenced in accordance with the gravity of their acts. Please elaborate on whether all suspects in prima facie cases of torture and ill-treatment are as a rulesuspended or reassigned during the process of investigation.
37.Information received by the Committee states that the impact of the armed conflict in Afghanistan on civilians has become a pre-eminent concern and that civilian casualties have been increasing over the past years. Please provide information on measures taken by the State party to ensure prompt, independent, thorough and impartial investigations into allegations of abuses or breaches committed by the Afghan and international forces during the conflict, including both those in violation of the Convention and in breach of other provisions of international humanitarian law, and to bring those responsible to justice.
38.Information before the Committee indicates that dozens of National Directorate of Security detainees, some arrested arbitrarily and detained incommunicadowithout access to defence lawyers, families, courts or other outside bodies, have been subjected to torture and other ill-treatment. Please explain the position of the Directorate within the Government structure and clarify which authority is responsible for monitoring its activities and facilities. What are the Directorate’s powers of arrest and detention? Are persons detained by the Directorate systematically registered? Please inform the Committee of the practices applied when closing down prisons and places of secret and illegal detention, including, where appropriate, those administered by private entities.
39.Information before the Committee states that impunity prevails in the State party for past and present crimes, including war crimes, and that alleged perpetrators continue to hold high-ranking positions of authority. In this respect, sources claim that in many cases, criminals and perpetrators have been arrested but later on released as a result of corruption and bribery.Please comment on such information and on reports indicatingthat the recently passed the National Stability and Reconciliation Law would allow perpetrators of war crimes and other human rights abuses to go unpunished. Please provide more information about this new law and indicate whether the State party intends to retract it.
40.Please provide updated information, including statistics, on the number of complaints of alleged torture and ill‑treatment, their investigation and prosecution and results of all the proceedings, both at the penal and disciplinary levels. This information should be disaggregated by sex, age and ethnicity of the individual filing the complaint.
41.Please update the Committee on the State party’s progress in investigating the numerous alleged mass gravesites throughout the country. Furthermore, please describe the steps taken to preserve or properly exhume these sites in order to ensure that evidence of torture, cruel, inhuman or degrading treatment or punishment, or other human rights abuses, is not destroyed.
Article 14
42.Please provide details on steps taken to ensure that adequate compensation, redress and appropriate rehabilitation programmes, including medical and psychological assistance, are provided to victims of torture and other ill-treatment, including trafficking, domestic violence, and sexual violence. Please also elaborate on the allocation of sufficient resources to ensuring that all victims of such crimes receive as full a rehabilitation as possible.
43.Please provide information on redress and compensation measures ordered by the courts and actually provided to victims of torture, or their families, since the examination of the State party’s initial report in 1992. This information should include the number of requests for compensation made, the number granted, and the amount of compensation ordered and those actually provided in each case. Please indicate how many victims have been compensated despite the perpetrator not being identified. Do investigations into such cases continue until the perpetrator(s) is/are identified and brought to justice?
Article 15
44.Further to article 30 of the Constitution of Afghanistan, please indicate steps taken to ensure that, in practice, evidence obtained by torture shall not be invoked as evidence in any proceedings, in accordance with article 15 of the Convention. Please also indicate which provision in the Penal Code applies in this case.
Article 16
45.In the context of the armed conflict, please provide information on measures taken to protect civilians, including from insurgent attacks such as suicide bombings and improvised explosive devices, and to ensure the security of all those residing in the areas affected by the conflict and of those who had to flee but now wish to return to their homes. Please also indicate any measures in place to protect the very high number of Afghan children who have become displaced with or without their parents. Please also explain if child detainees who participated in armed hostilities are treated differently than adults under the penal law, specifically as regards the maximum sentences they are eligible to receive.
46.Please comment on reports that threats, violence, and intimidation are regularly used to silence opposition politicians, critical journalists and civil society activists. Information received by the Committee also states that journalists have been targeted by the Taliban, other anti-Government groups, and criminal gangs and warlords. Please provide information on measures taken to adequately prevent, combat and punish such intimidation and violence and provide statistical data on the number of complaints relating to these acts, and on the related investigations, prosecutions, convictions and sanctions, as well as on compensation provided to victims.
47.Reports before the Committee indicate that human rights defenders in Afghanistan are subjected to threats, intimidation, harassment, surveillance, arbitrary detentions, forced disappearances and killings. Please provide information on steps taken to ensure that all persons, including those monitoring human rights, are protected from any intimidation, unjust imprisonment or violence as a result of their activities, as well as the prompt, impartial and effective investigation of such acts.
48.Please comment on the concerns expressed by the Special Rapporteur on extrajudicial, summary or arbitrary executions concerning non-respect of international standards relating to the imposition of capital punishment. Please also comment on reports that the death penalty has been imposed as punishment in some cases of apostasy and blasphemy. Is the State party considering reviewing its use of the death penalty and declaring a moratorium on executions, at least until the criminal justice system is able to meet basic due process standards? Please provide precise numbers of persons executed since the consideration of the State party’s initial report and indicate for what offence this penalty has been imposed. Have any children been sentenced to death and executed? Please also indicate the current number of persons on death row, disaggregated by sex, age and ethnicity.
49.Please provide information on the content and implementation of the Juvenile Justice Law adopted in 2005. Although the minimum age of criminal responsibility has been raised from 7 to 12 years, please comments on reports indicating that mainly due to the lack of means of age verification, children under the age of 12 years can be arrested and imprisoned for minor crimes such as theft. Please provide statistics on the number of children in detention, disaggregated by sex, age and ethnicity. Updated information should also be provided on steps taken to improve living conditions in line with the special needs of minors in detention facilities for persons under the age of 18 and on the availability of separate detention facilities for juvenile offenders.
50.Information before the Committee states that Afghan children are at serious risk of becoming involved in the armed conflict and the United Nations Children’s Fund (UNICEF) estimates that there are 8,000 child combatants in Afghanistan (both active and former). Please comment on such information and on the concerns expressed by the Special Representative of the Secretary-General for children and armed conflict that children have been recruited and utilized by State and non-State armed groups and that non-State armed groups, such as the Taliban, continue to train and use children as suicide bombers. Please describe the measures taken by the State party to protect children in areas affected by armed conflict, including from recruitment into armed forces, and indicate what specialized medical and psychosocial care is given to demobilized child soldiers and children who have been victims of landmines. Information should also be provided on measures taken to protect female teachers and students from attacks by Taliban insurgents, including assassinations, intimidations and the throwing of acid.
51.Please inform the Committee of measures being taken by the State party to prevent corporal punishment of children, including in schools, at home and as a disciplinary measure in penal institutions.
Other issues
52.Please provide information on steps taken to become a party to the Optional Protocol to the Convention. Please also indicate what steps have been taken by the State party to accept the competence of the Committee under article 21 and 22 of the Convention.
53.Please inform the Committee whether the State party has enacted legislation implementing the provisions of the Rome Statute of the International Criminal Court in domestic law.
54.Please indicate any changes in the State party’s position on withdrawing its reservations, declarations and understandings lodged at the time of ratification of the Convention.
55.Please provide updated information on the legislative, administrative and other measures taken by the State party to respond to any threats of terrorism. Please describe if, and how, these measures have affected human rights safeguards in law and practice and how the State party has ensured that such measures comply with all its obligations under international law, especially the Convention, in accordance with relevant Security Council resolutions, in particular resolution 1624 (2005). Please describe the relevant training given to law enforcement officers, the number and types of convictions under such legislation; the legal remedies available to persons subjected to anti-terrorist measures in law and in practice; whether there are complaints of non-observance of international standards; and the outcome of these complaints. Please confirm that there are no secret detention facilities in Afghanistan.
General information on the national human rights situation, including new measures and developments relating to the implementation of the Convention
56.Please provide detailed information on the relevant new developments on the legal and institutional framework within which human rights are promoted and protected at the national level, that have occurred since the consideration of the initial report, including any relevant jurisprudential decisions.
57.Please provide detailed relevant information on the new political, administrative and other measures taken to promote and protect human rights at the national level since the consideration of the initial report, including on any national human rights plans or programmes, and the resources allocated thereto, their means, objectives and results.
58.Please provide any other information on new measures and developments undertaken to implement the Convention and the Committee’s recommendations since the consideration of the initial report, including the necessary statistical data, as well as on any events that have occurred in the State party and are relevant under the Convention.