August 9, 2017
The Afghanistan Forensic Science Organization (AFSO) conducted a five-month trial monitoring project in order to evaluate the use of forensic evidence in Kabul Primary Courts. A total of 40 cases were monitored, including: 25 cases of murder; 13 cases of moral crimes, comprised of zina (extramarital sex), attempted zina (qasd zina), running away from home (faraar az khana) and sodomy (lewat); and two cases of torture.
Forensic science, when used objectively, impartially and in an evidence-based manner, can make an important contribution to the administration of justice. Unfortunately, AFSO’s trial monitoring project discovered that forensic science is often used in a biased and invalid manner in Kabul’s primary courts and this is jeopardising the right to a fair trial and resulting in miscarriages of justice. In addition, trial monitoring revealed routine violations of the rights of suspects and accused persons provided for in the Constitution of Afghanistan and the Criminal Procedure Code.
AFSO identified systemic problems with substandard crime scene processes and documentation and an inability of defence counsel to review such processes or documentation, including an inability to access physical evidence. Defence counsel are not provided with briefs of evidence, severely limiting their ability to prepare and present and adequate defence for their clients. Defence counsel are not given the ability to adduce their own evidence or test the evidence offered by the prosecution.
In a majority of trials there appeared to be a lack of evidence linking the accused to the crime. AFSO observed that non-medical forms of forensic evidence, for example, fingerprinting, ballistics and the results of general crime scene processing, were not considered, despite the Ministry of Interior’s Criminal Technique Laboratory having the technical capacity to do such tests.
Of particular concern to AFSO is the routine admission of evidence based upon scientifically invalid tests by the Legal Medicine Directorate (LMD). Such evidence includes hymen and anal examinations for the purported purpose of determining sexual status, and age determination methods used to purportedly determine chronological age.
The majority of women who are accused of zina are subjected to both hymen and anal examinations, which are widely recognised as a form of torture. LMD reports are tendered by the prosecutor without making the author of the report available for examination by the judge or the parties, making it impossible for defence lawyers to question medical examiners on their findings or contest the validity or reliability of such reports. These LMD reports are limited to reporting on their findings without any supporting documentations.
AFSO provides the following recommendations to the Government of Afghanistan:
- Training for judges, prosecutors, defence lawyers and police on the Criminal Procedure Code and use of evidence.
- All police officers are to fulfil their obligations under Article 80 of the Criminal Procedure Code to investigate crime and document their actions in fulfilling these obligations.
- The Attorney-General needs to establish clear policies and procedures on the sharing of information between the parties. A copy of the brief of evidence to be made available to defence in advance of the trial.
- The Ministry of Public Health should take immediate steps to ensure implementation of its directive prohibiting doctors from performing forced gynaecological examinations.
- The Legal Medicine Directorate under the umbrella of the Ministry of Public Health is included in the directive to prohibit forced gynaecological examinations and therefore must immediately stop conducting forced gynaecological examinations and forced anal examinations.
- The Office of the President should issue a decree prohibiting hymen and anal examinations for the purported purpose of establishing whether a person had had consensual sexual intercourse or is a “virgin”.
- The Ministry of Interior and Attorney-General’s Department should issue a corresponding directive instructing police officers and prosecutors not to refer individuals for these tests in these prosecutions for consensual zina, attempted zina, running away from home and consensual sodomy. The Supreme Court should issue a directive to judges to not order such examinations be carried out, and to not allow the results of such examinations carried out without the consent of the individual being admitted as evidence.
- Where an accursed’s status as a minor is in question, prosecutors should make comprehensive inquiries such as checking school enrollment, other family members’ tazkeras (national ID card) and Census Department records, before relying upon LMD reports in making their age determinations. Judges should insist upon such measures. Age assessment procedures should be undertaken only as a measure of last resort and only with the informed consent of the individual. Where there is any doubt as to whether an accused has attained the age of 18 years, they should be given the benefit of the doubt.
The report, An Evaluation of Forensic Evidence in Kabul Primary Courts is available for download here: