Afghanistan: Gang Rape Trial Badly Flawed. Due Process Violations, Political Interference Undermine Justice

Source: Human Rights Watch

Due Process Violations, Political Interference Undermine Justice

(Kabul) – An Afghan court’s conviction of seven men for a gang rape was wholly undermined by numerous due process violations and political interference, Human Rights Watch said today. The court of appeals should competently, impartially, and independently conduct judicial review of the September 6, 2014 trial and the resulting death sentences.

A Kabul primary court convicted all seven suspects of armed robbery and zina (sex outside of marriage) against four women returning from a wedding in Paghman district, outside of Kabul, on August 23. From the beginning, the case was marked by serious flaws, in the police investigation and in a trial that violated international due process standards as well as protections under Afghan law and the constitution. These included alleged coerced confessions and inadequate time to prepare a defense. Statements from President Hamid Karzai’s office calling for the suspects’ executions further undermined their fair trial rights and the independence of the court.

“The police and court have responded to a horrific crime with a botched trial that makes a mockery of justice for both victims and defendants,” said Phelim Kine, deputy Asia director. “This case sadly demonstrates that the Afghan justice system, despite more than a decade of promised reform, still has a long way to go before genuine justice is handed down.”

On the evening of August 23, the seven accused men, dressed in police uniforms and armed with Kalashnikov assault rifles, stopped two cars heading into Kabul, Kabul police officials said. The armed men forced the occupants out of their cars and took money and jewellery. They then raped the four women, one of whom was pregnant, by the side of the road. The barbarity of the crime has sparked widespread public condemnation in Afghanistan.

The authorities’ handling of the case has been riddled with violations of due legal process guaranteed under both Afghan law and international legal standards. After the arrest of the seven suspects, President Karzai’s spokesman issued a statement on September 2 that the president wanted those responsible for the crime to be given “the strongest possible sentences as soon as possible” and that he would “not delay signing the sentence for these criminals.” In a televised meeting with women’s rights activists on September 6, Karzai specifically referenced the Paghman gang rape and said, “I request the honorable chief justice to give them the death sentence.”

The president’s statements undermined the defendants’ presumption of innocence under Afghan and international law and their right to a fair trial by interfering with the independence of the judiciary.

Kabul police photos show that, with journalists watching, the rape victims identified the suspects in a lineup that included only the seven suspects. The use of a “show up,” a lineup identification process that includes only the alleged perpetrators in front of the media may improperly pressure a victim to make identification.

The trial lasted about two hours, and for unstated reasons was the first of its kind to be televised in Afghanistan. The Justice Ministry provided the defendants with two defense lawyers, who had inadequate time to prepare a defense. The prosecution made a statement, as did the police chief, but no eyewitnesses testified. The judge questioned some of the defendants and later gave them an opportunity to make a statement, but only one did. The defense attorneys spoke briefly, but according to one account they spoke only to mitigate any punishment. “My clients did it because they’re illiterate and ignorant,” one said. The judge then retired to his chambers for deliberation. He returned in 10 minutes to announce the guilty verdict and sentences.

The only apparent evidence presented was the confessions of the accused, which may have been coerced. A journalist present during the police interrogation of the men told Human Rights Watch that no lawyers were there to represent the accused. At least one defendant has alleged that his confession was obtained under torture. At the trial, most of the men appeared to have injuries consistent with having been beaten, a media report said. Afghanistan’s Code of Criminal Procedure and international human rights law prohibit the use of coerced confessions as evidence, but the United Nations has documented systematic and widespread use of torture by Afghan law enforcement officials, especially to extract confessions.

The seven defendants all received death sentences under a a rarely applied provision of Afghanistan’s Communist-era 1987 Law on Crimes Against Internal and External Security, which makes “banditism” punishable by death. International human rights law requires that where the death penalty has not been abolished, it should be imposed only for the most serious crimes and after scrupulous adherence to international fair trial standards. That includes the rights of the defendant to present a defense, to be presumed innocent, and not to be compelled to confess guilt. Human Rights Watch opposes capital punishment in all countries and in all circumstances because the death penalty is unique in its cruelty and finality, and it is inevitably and universally plagued with arbitrariness, prejudice, and error.

The trial did not examine the victims’ allegations that the accused men were wearing police uniforms. Kabul police have denied that the defendants were members of any police unit. However, the Paghman area is known to be dominated by various militia forces. The possible involvement by police or militia in the crime should be thoroughly investigated.

The Paghman case also highlights the dangers for female victims of sexual violence, who already face severe social stigma in Afghanistan. When the police investigators allowed journalists to see the four victims identify the alleged attackers in a lineup on September 3, it put the victims at risk and deterred victims of future sexual attacks from coming forward. The four victims have received no assistance from female police officers although the government has created special Family Response Units within police stations. Afghan cultural norms make it extremely difficult for many women to speak with a male police officer who is not related to them, especially about issues such as sexual assault.

Furthermore, the accused in the Paghman case were charged not with rape, but with the “moral crime” of zina, which implicates both parties. Afghan courts routinely prosecute women who have been raped for zina. Rape was made a crime in Afghanistan after Karzai, at the urging of foreign donors, signed into law the Elimination of Violence Against Women, or EVAW Law, in 2009. While the law was a huge symbolic victory for the rights of Afghan women, the government has consistently failed to compel its own police, prosecutors, and judges to take it seriously and fully enforce it.

Research by the United Nations in Afghanistan indicates that police fail to investigate and the authorities fail to pursue prosecutions in the vast majority of incidents of violence against women, including since the law went into effect.

“The Paghman case shows how abusive and dysfunctional the Afghan legal system remains not only for suspects but for women who are survivors of sexual violence,” Kine said. “Afghan women need their government, police, and courts to start enforcing the laws designed to protect them, not show trials that violate the rights of both the victims and the suspects.”