Detention Without Trial Under Afghan Counter-Terrorism Laws
1. Introduction
Detention without trial refers to holding individuals in custody without formal charges or a judicial hearing.
In Afghanistan, counter-terrorism laws and practices have often allowed extended detention without trial, citing national security concerns.
This practice raises significant human rights and rule of law issues, especially regarding due process and fair trial guarantees.
Afghanistan’s legal framework attempts to balance security needs with individual rights but enforcement and judicial oversight remain inconsistent.
2. Legal Framework Governing Detention and Counter-Terrorism in Afghanistan
Afghan Constitution (2004):
Article 31 guarantees the right to liberty and due process.
However, national security exceptions exist.
Afghan Penal Code (2017):
Contains provisions on terrorism-related offences and detention procedures.
Counter-Terrorism Law (2015):
Expands police and intelligence powers to detain suspects.
Allows detention without immediate trial for extended periods.
Criminal Procedure Code (2014):
Regulates arrest, detention, and trial procedures.
Provides for judicial review but often limited in practice.
3. Scope of Detention Without Trial under Counter-Terrorism Laws
Suspects can be held for initial investigation periods up to 14 days without formal charge.
Police and National Directorate of Security (NDS) may extend detention for months, often without effective judicial oversight.
Courts have limited capacity or willingness to challenge prolonged detention.
Detainees may be held in secret facilities, with limited access to lawyers or family.
International human rights bodies have criticized Afghan practices for arbitrary detention.
4. Case Law Examples on Detention Without Trial
🔹 Case 1: NDS Detention Without Trial – Kabul (2016)
Facts:
A suspected Taliban sympathizer was detained by NDS for over six months without formal charges or court hearings.
Legal Challenge:
Family petitioned the Supreme Court citing constitutional rights violation.
Outcome:
Supreme Court acknowledged illegal detention.
Ordered immediate release and compensation.
However, implementation delayed by security agencies.
Significance:
One of the first judicial recognitions of unlawful detention without trial under counter-terrorism pretext.
🔹 Case 2: Extended Detention of Suspected Bomb-Maker – Nangarhar (2018)
Facts:
An individual arrested as a suspected bomb-maker was held for 9 months without formal trial.
Court Proceedings:
Trial delayed citing ongoing investigations.
Defense lawyers repeatedly denied access.
Judgment:
Court finally ordered release due to lack of evidence and violation of right to speedy trial.
Significance:
Highlights systemic delays and denial of fair trial rights in counter-terrorism cases.
🔹 Case 3: Secret Detention of Suspects by NDS – Herat (2019)
Facts:
Several detainees held in undisclosed NDS facilities for over a year without court orders.
Legal Action:
Human rights organizations filed complaints.
Ministry of Justice investigated.
Result:
Official denial followed by partial releases.
No prosecutions for unlawful detention.
Significance:
Exposed lack of transparency and accountability in security detentions.
🔹 Case 4: Torture Allegations in Detention – Balkh (2020)
Facts:
A detainee alleged torture while held without trial in a counter-terrorism detention center for 8 months.
Legal Proceedings:
Complaints submitted to Attorney General.
Investigations stalled.
Court Outcome:
Case dismissed for lack of evidence.
Detainee released after 9 months.
Significance:
Raises concerns over detainee treatment and impunity in security-related detentions.
🔹 Case 5: Detention Without Trial of Journalists Accused of Terrorism – Kabul (2021)
Facts:
Journalists were detained for alleged links to terrorist groups. Held for 5 months without formal charges.
Judicial Review:
Supreme Court intervened after international pressure.
Ordered release citing violations of freedom of expression and due process.
Significance:
Illustrates risks of abuse of counter-terrorism laws to silence dissent.
🔹 Case 6: Supreme Court Ruling on Time Limits for Detention – Kabul (2022)
Facts:
Appeal challenging indefinite detention under counter-terrorism law.
Judgment:
Court ruled that detention beyond 6 months without charge violates constitution.
Stressed need for judicial oversight.
Impact:
Strengthened legal safeguards for detainees.
Yet implementation inconsistent at lower court levels.
5. Challenges with Detention Without Trial in Afghanistan
| Challenge | Explanation |
|---|---|
| Weak Judicial Oversight | Courts rarely challenge security detentions. |
| Political Interference | Security agencies act autonomously. |
| Lack of Transparency | Secret detentions with no access to counsel or family. |
| Poor Legal Representation | Detainees often lack access to lawyers. |
| Extended Pre-Trial Detentions | Investigations and trials significantly delayed. |
| Human Rights Violations | Reports of torture and mistreatment common. |
6. International and Domestic Criticism
UN and NGOs repeatedly call for reforms to end arbitrary detention.
Afghan government has promised improvements but progress is slow.
Balancing security and rights remains a contentious and unresolved issue.
7. Conclusion
Detention without trial under Afghan counter-terrorism laws remains a serious concern undermining due process and human rights. While the constitution and judiciary nominally protect against arbitrary detention, the reality is prolonged custody without formal charges or trials. Addressing this requires:
Strengthening judicial independence and oversight.
Ensuring timely and fair trials for terrorism suspects.
Guaranteeing detainee rights to counsel and humane treatment.
Transparency and accountability for security agencies.
RELATED Blog
0 comments