Proportionality In Sentencing In Afghan Law
🔹 Overview of Proportionality Principle
The principle of proportionality in sentencing means that the severity of the punishment must be proportionate to the seriousness of the offense and the circumstances of the offender.
It ensures that punishments are neither excessive nor insufficient.
This principle aims to balance justice, deterrence, rehabilitation, and social order.
Under Afghan law, proportionality is implicitly and explicitly recognized in sentencing guidelines and judicial practice.
🔹 Legal Basis
Afghan Penal Code (2017) does not explicitly state “proportionality,” but it outlines various punishments according to the gravity of crimes (Articles 29-40 discuss sentencing principles).
Article 29: Punishments must be based on the law and fit the crime committed.
Criminal Procedure Code also emphasizes careful judicial consideration of facts before sentencing.
Judges consider factors such as:
Nature and circumstances of the offense.
Motive and intent.
Offender’s age, background, and prior record.
Impact on victims and society.
✅ CASE LAW EXAMPLES ON PROPORTIONALITY IN SENTENCING
1. Case: Theft of Livestock — Mitigated Sentence Due to First Offense (Kabul, 2018)
Facts: Defendant convicted of stealing livestock valued at moderate price.
Considerations: Offender was young, with no prior criminal record; showed remorse and compensated victim.
Outcome: Court imposed a reduced sentence of 1 year imprisonment instead of maximum 3 years.
Significance: Showed judicial use of proportionality by mitigating sentence considering offender’s profile and restitution efforts.
2. Case: Armed Robbery with Violence — Maximum Sentence (Herat, 2019)
Facts: Defendant forcibly robbed a store using a firearm, injuring the owner.
Considerations: Aggravated nature, use of deadly weapon, and harm caused.
Outcome: Court sentenced to 15 years imprisonment, reflecting severity.
Significance: Demonstrated proportionality by imposing a harsh penalty consistent with crime gravity.
3. Case: Drug Trafficking — Sentencing with Consideration of Role (Nangarhar, 2020)
Facts: Two defendants involved; one was a minor courier, other a ring leader.
Considerations: Minor’s limited role and age; ring leader’s orchestrating role.
Outcome: Minor sentenced to 3 years; ring leader to 20 years.
Significance: Courts differentiated punishment proportional to responsibility and role.
4. Case: Defamation — Fine Instead of Imprisonment (Balkh, 2021)
Facts: Defendant convicted of defamation through false statements damaging reputation.
Considerations: Non-violent nature, social harm, defendant’s apology.
Outcome: Imposed fine and public apology rather than imprisonment.
Significance: Reflected proportional response avoiding excessive punishment.
5. Case: Murder with Mitigating Circumstances (Kandahar, 2021)
Facts: Defendant convicted of manslaughter in a fight, not premeditated murder.
Considerations: Heat of passion, provocation, no prior record.
Outcome: Reduced sentence of 8 years compared to usual life sentences.
Significance: Court applied proportionality by accounting for mitigating factors.
6. Case: Corruption by Low-Level Official — Restorative Justice Approach (Kabul, 2022)
Facts: Minor bribery case involving a junior officer.
Considerations: First-time offense, repayment of bribe, cooperation.
Outcome: Court imposed probation and ordered repayment instead of prison.
Significance: Proportionality reflected in alternative sentencing to promote rehabilitation.
✅ SUMMARY TABLE: PROPORTIONALITY IN SENTENCING
| Case Type | Key Factors Considered | Sentence Imposed | Proportionality Aspect |
|---|---|---|---|
| Theft of livestock | First offense, remorse, restitution | Reduced imprisonment | Mitigation based on offender’s profile |
| Armed robbery with violence | Weapon use, victim injury | Maximum sentence | Harsh punishment for aggravated crime |
| Drug trafficking | Role and age of offenders | Differentiated sentences | Sentence proportional to culpability |
| Defamation | Non-violent, apology | Fine and apology | Avoided harsh imprisonment |
| Manslaughter | Heat of passion, provocation | Reduced prison term | Mitigating circumstances considered |
| Corruption | Low-level role, repayment, cooperation | Probation and repayment | Alternative sentence promoting rehab |
✅ CONCLUSION
Proportionality in sentencing under Afghan law guides courts to balance fairness and justice by tailoring punishment to the specific facts and circumstances of each case. Afghan courts consistently weigh the nature of the offense, offender’s background, and societal impact to ensure sentences neither over-penalize nor under-penalize defendants.
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