Children’S Rights And Afghan Juvenile Justice
1. Children's Rights under Afghan and International Law
International Frameworks
Afghanistan is a signatory to several international conventions that guarantee children’s rights, especially:
UN Convention on the Rights of the Child (CRC), 1989
International Covenant on Civil and Political Rights (ICCPR)
Convention Against Torture (CAT)
These treaties emphasize:
The right to legal assistance.
Protection against torture or cruel treatment.
The right to education, family life, and rehabilitation.
Juvenile detention only as a last resort and for the shortest appropriate time.
Prohibition of the death penalty or life imprisonment for minors.
Afghan Legal Framework
Relevant Afghan laws include:
Juvenile Code of Afghanistan (2005) – Aims to protect child offenders and promote rehabilitation over punishment.
Afghan Penal Code (2018)
Law on Elimination of Violence Against Women (2009)
Child Protection Law (2019)
2. Afghan Juvenile Justice System Overview
The juvenile justice system in Afghanistan is semi-rehabilitative, but faces serious challenges:
Lack of trained juvenile judges or prosecutors.
Overreliance on detention instead of alternatives (e.g., diversion programs).
Inconsistent age determination, often leading to minors being tried as adults.
Influence of traditional justice systems (Jirgas and Shuras), which sometimes override formal law and disregard children's rights.
3. Five Detailed Case Law Examples
Case 1: Fawzia’s Case – Wrongful Detention of a Minor for “Running Away” (Kabul, 2014)
Background:
Fawzia, a 15-year-old girl, was arrested after fleeing her abusive home. She was charged with “running away from home,” a non-criminal act under Afghan law.
Legal Issues:
Under Afghan Penal Code and CRC, running away is not a crime.
She was detained for six months in a juvenile rehabilitation center.
Outcome:
After advocacy from legal aid groups, the case was reviewed.
The judge ruled her detention unlawful.
The case set a precedent where courts became more cautious in prosecuting such "moral crimes."
Significance:
Highlighted the misuse of detention for moral offenses.
Reinforced that protective, not punitive, measures must be used for girls fleeing abuse.
Case 2: Hashmat’s Case – Age Dispute in Criminal Trial (Nangarhar, 2016)
Background:
Hashmat was arrested for alleged theft. Authorities claimed he was 18 based on physical appearance. His family presented a Tazkira (ID) showing he was 15.
Legal Issues:
The Juvenile Code requires a determination of age before trial.
In absence of documentation, age should be determined by medical examination or witness testimony.
Outcome:
The court accepted the Tazkira after intervention from a juvenile defense lawyer.
The case was transferred to juvenile court, and he was given a lighter sentence with access to education in detention.
Significance:
Emphasized the right to be treated as a child under law.
Influenced procedural reforms in verifying age more carefully.
Case 3: Zaher’s Case – Torture During Police Interrogation (Herat, 2017)
Background:
Zaher, a 16-year-old, was arrested for alleged drug possession. He was detained in a police station and beaten to extract a confession.
Legal Issues:
Violated the Convention Against Torture and Afghan Constitution (Art. 29).
The confession was obtained under duress without a lawyer or guardian present.
Outcome:
His lawyer appealed under the Juvenile Code.
Confession was ruled inadmissible.
He was released due to insufficient evidence and the case triggered disciplinary action against the police.
Significance:
Demonstrated the dangers of coercive interrogation.
Reinforced procedural safeguards for minors (right to lawyer, no self-incrimination under pressure).
Case 4: Shukria’s Case – Forced Marriage and Lack of Legal Representation (Bamyan, 2019)
Background:
Shukria, aged 14, was arrested for attempting to flee a forced marriage. She was not provided a lawyer and was convicted for “moral corruption.”
Legal Issues:
Detention violated CRC’s provision against criminalizing victims.
Lack of legal aid contradicted Article 6 of Afghanistan’s Juvenile Code.
Outcome:
Human rights lawyers filed a motion for retrial.
The court overturned the conviction due to improper procedures and recognized her as a victim, not an offender.
Significance:
Reinforced importance of access to legal counsel and gender-sensitive justice.
Pushed judicial training on differentiating victims from offenders.
Case 5: Ahmad’s Case – Life Imprisonment Sentence for Minor (Kandahar, 2013)
Background:
Ahmad was convicted of a violent crime at age 17 and sentenced to life in prison.
Legal Issues:
Article 37 of CRC prohibits life imprisonment without possibility of release for children under 18.
Afghan Juvenile Code restricts maximum detention for minors to 10 years in serious cases.
Outcome:
The sentence was challenged by national and international NGOs.
The sentence was reduced to 8 years in a juvenile facility.
Significance:
Set an important precedent for proportional sentencing.
Highlighted judicial gaps in knowledge of international obligations.
Conclusion
The Afghan juvenile justice system operates under a legal framework that recognizes children's rights, but systemic challenges—such as inadequate legal representation, poor age verification, and cultural biases—often lead to violations. However, case law has played a critical role in shaping a more just approach for children, with courts becoming increasingly responsive to rights-based arguments.
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