Christina Oguz, UNODC Country Representative for Afghanistan

UNAMA HUMAN RIGHTS UNIT (HRU)

Good morning ladies and gentlemen, Asalam Alaikum, as Nilab just explained my name is Norah Niland I am the head of Human Rights Unit in UNAMA. I also represent the United Nations High Commissioner for Human Rights.

The focus of this morning is on detention, but I would first like to say a few words about the Universal Declaration of Human Rights, since it is the 60th anniversary of the Universal Declaration of Human Rights. Birthday’s and anniversaries are usual times for reflection as well as celebrations. Clearly there is much to celebrate here in Afghanistan and around the world. There have been many achievements both here in this country as well as elsewhere that have been made in the past six years to advance the human rights agenda.

Improved awareness here in Afghanistan is a central and critical achievement.  Knowing that you as a human being have inherent rights is the first step to having your rights respected. In recent years the United Nations has underlined the importance of inherent rights repeatedly when it points to the centrality of human rights in order to achieve peace, justice and sustainable development.

Now let me turn to the topic of arbitrary detention, in other words, detention that is not lawful, that is the focus of this morning’s press conference.

The United Nations and its many partners including government stakeholders and civil society actors have launched a week of activities focusing on issues related to detention with particular emphasis from a Human Rights prospective on arbitrary detention.

The UDHR declares that everyone has the right to dignity and justice. In other words, all Afghans, including persons suspected of committing criminal offences, deserve to be treated with dignity and justice in their dealings with law enforcement officials and the judiciary.

The judicial and law enforcement systems in Afghanistan are still developing – some of the problems that need to be addressed, and I am sure you all will agree with, is the issue of inadequate resources. Issues and challenges also include the capacity of the police and judges, and, in many instances, a poor understanding of the law. Corruption and abuse of justice sector mechanisms are also significant issues. These problems can result in detention, conviction, and punishment of individuals who may be innocent. They may also result in the abuse of the rights of people who are detained and a failure to punish individuals who are actually guilty of serious crimes.

UNAMA and the AIHRC conducted monitoring of over 2,000 cases between November 2006 and the middle of this year to better understand detention practices in Afghanistan.

Based on this monitoring exercise, the Government of Afghanistan and its partners are now in a better position to address the problems that have been identified.

Arbitrary detention is of concern because it violates the Constitution of Afghanistan as well as international human rights standards.
Of course detention that is not lawful also violates the right of every Afghan to liberty and to due process of law and this also erodes public confidence in the government.

There are two more points I wish to make:
Focusing on the rights of detainees is often misunderstood. The basic point I wish to underline this morning is that everyone who is detained, either lawfully or unlawfully, has rights that should be respected.

Of course, individuals who have been found guilty of crimes, in a fair trial process, need to be held accountable. All societies need systems that are fair and are seen to be fair. It is the guilty who need to be punished, NOT the innocent.

Prosecuting the guilty, it is important ensure that the procedures laid down in law concerning arrest, detention and trial processes are respected.

My final point this morning is that the Afghan government has recognized that there is a problem with arbitrary detention in Afghanistan and has committed to tackling this problem through the Afghanistan Compact, the Afghanistan National Defence Strategy  and importantly, the National Justice Programme.

To conclude, successfully tackling the problem of arbitrary detention will contribute to the development of Afghanistan as a democratic, peaceful, and prosperous country.
Thank You, Tashakor. 

UNODC COUNTRY REPRESENTATIVE:

Good morning everybody and thank you very much for showing up today. The theme of the campaign of the 60th anniversary of the Universal Declaration of Human Rights is “Dignity and justice for all of us.” The sense of dignity is fundamental to our survival as human beings.  If you deprive a person of his or her dignity you do harm.  You understand this very well in this country because of there is a strong link between dignity and honour.

The Universal Declaration of Human Rights acknowledges human dignity as a core value. And so does the Afghan Constitution. Liberty and dignity are inviolable. The state shall respect and protect human dignity. It applies to every human being: to woman, to man, and to child.

It applies to you also if you have been convicted of a crime. And if you are in prison, you have the right to be treated with dignity.

Before going into the main topics of my introduction, I would like to point out strongly that the Afghan Constitution is very clear about the presumption of innocence: it says that the accused shall be innocent until proven guilty by the order of an authoritative court.

For this to become reality you must have the right to defence, which, by the way also is a constitutional right in this country: every person upon arrest can seek an advocate to defend his/her rights or to defend his/her case. There are very few defense lawyers in this country, less than 600.

Now, let me turn to the question of incarceration. Everywhere in the world, the prison population is growing. More and more people are put behind bars. In 2001, in this country there were around 600 prisoners in Afghanistan. Today there are around 12,500. 350 of them are women. 3% of the total prison population. The world average is 2-9%, so it is within these limits, but is on the low side.

Generally speaking, across the world, women tend to commit less crime and their offences are generally less serious and less violent.

UNODC has done a study of women in prison in 2006. Half of them were in prison because of so-called moral crimes, for example running away from home. In other countries, these women would be considered victims, not perpetrators.

Women prisoners, if you look worldwide, have very different backgrounds than male prisoners and also in Afghanistan – they are more often victims of sexual abuse and domestic violence, of course compared to men but also compared to the female population in the country at large.

The huge difference in size between the male and female prison populations (12,500 versus 350) this means the specific needs of women prisoners are usually overlooked. The small number of women’s prisons creates logistical problems, and women prisoners are likely to be held further from home than men.

They suffer more from social exclusion than men. They suffer from the isolation from their families and their children. They take care of the children and the elders in the family.

UNODC has taken the initiative to look more into the needs of female prisoners and staff. With the help of funds from Austria, we are working to promote their resettlement, personal development, education and training of women in prison. The female staff in prisons plays a key role here in preparing the prisoners for a life outside the prison. We have done a needs assessment of female prison staff. Based on this one and the other report we have developed a Handbook for female prison staff.

The Handbook and the training based on it are not meant to replace the other training and other materials, which all prison staff should have access to. It is meant to supplement to make sure that the specific needs that women in prison have, are respected because of their background: domestic violence, sexual abuse etc., and because prisons are built for the majority, i.e. men, not for women.

Now turning to the second part: incarceration as such Norah has already talked about detention and I would like to say a few words about pre-trial detention.

Pre-trial detention is supposed to be the exception, not the rule. But here it is more the rule, especially if you are poor and without powerful friends. If you have powerful friends and commit a crime, you may not even face a trial. A phone call to the police who arrested you may be enough to set you free. I have called this ‘telephone justice.’  If you don’t have these powerful friends you may end up in jail even if you are a child.

I want to tell you about a case of two young teenagers in Kandahar that came to us in May 2008; they were in a Juvenile Rehabilitation Centre for one and a half years on the suspicion of stealing a cell phone – without even having been sentenced.  We don’t even know if they stole the mobile phone. But they were behind bars for one and a half years and they were teenagers.

People also remain in prison after they have served their sentence. This is partly due to the strange practice of having a double sentence – having prison and a fine. So if you are poor, you may end up staying in prison even though your sentence has ended because you cannot pay your fine or you cannot bribe yourself out of the sentence. We have found many cases of people who are still in prison after they have already served their time.

There are many efforts in this country to improve conditions but still the conditions in Afghanistan remain very poor. Prison should not be the first sentence that comes to your mind in most of the cases – and especially not for the most vulnerable: women, children, people with mental health problems and people with drug addiction problems. And first time offenders who have not committed a violent crime.

We want to help people to rethink crime and punishment. Create a debate about the role and impact of imprisonment and other forms of punishment, among the public, the media and policy-makers. We hope this will contribute to more rational and evidence based policy-making.

Prison is often a very expensive way of making a bad situation worse.  Prisons in this country overcrowded, with a risk for TB and HIV/AIDS etc. So it is not a good situation at all.

Therefore I believe that Afghanistan has to look into alternatives to imprisonment. We are presenting a report on this and as Nilab said, Tomris is here to respond to any technical questions.  There are a number of alternatives to pre-trial detention and prison in the Penal Code and in the Juvenile Code. The challenge is to ensure that these alternatives are applied in practice. They are very seldom applied in practice today.

Alternatives include: bail, possibly before trial, fines (but those should not be used in addition to prison!).  Other alternatives include suspended sentences and early conditional release.

You could also have house arrest or restriction on movements. For example, for a mother could be kept in her home without being allowed to leave and she could take care of children and the elderly. Or you could have drug addiction treatment for petty crimes rather than putting them into jail.

Some of these alternatives are dependent on having good community services. Like child protection services which one of the reasons why the alternatives in the Juvenile Code are very seldom used in this country.  There are also too few judges and prosecutors who are specialized in the needs of young offenders in the juvenile code.  So not only the prison staff but also the other parts of the criminal justice system should get proper training on the needs of women and the needs of juveniles.

QUESTION AND ANSWERS:

TKG [translated from Dari]: As you are aware the Government has accelerated the execution process and yesterday eight prisoners were executed in the Pul-e-Charkhi prison. What is UNAMA’s view on this and do you support this process?

UNAMA HRU: A very interesting question which has a very close relation to detention. I just want to make two-three points. When first the executions occurred in mid-November, the United Nations Commissioner for Human Rights issued a statement, where UNAMA and the rest of the United Nations were very concerned about executions in Afghanistan for reasons I will explain. As we have discussed this morning the judicial system in Afghanistan is quite weak and it raises a lot of concerns about who is detained; is it guilty or innocent?  UNAMA is very concerned about innocent people being executed even in countries with much stronger resources and much stronger history and judicial system than Afghanistan have found themselves in a situation where after the fact innocent people received the death penalty. Executing innocent people clearly is a very grave injustice. For this reason in the United Nations General Assembly just about a year ago over one hundred countries called for a moratorium on the death penalty.

RFE/RL [translated from Dari]: You mentioned about a study on arbitrary detention and that people remain in prisons after they serve their terms. Could you please give us the number of those people detained arbitrarily and what are the main charges against them?

UNAMA HRU: A very interesting question. I am afraid we don’t have numbers because the monitoring we did was over 2,000 cases which of course were not comprehensive so unfortunately we don’t have a picture of the numbers. However we do have a good understanding of what are the drivers of these problems and I will mention three of them.
Three issues; quite often Afghans are detained for actions that are not crimes in Afghan law, this is one issue. People are also detained for far longer periods than the law allows and Christina mentioned some of the reasons how that occurs and what are the problems. Very importantly, people also are being detained because trial standards and fair trial procedures are not observed in this country.

As Christina mentioned and I am echoing that quite often a lot of Afghans do not have access to legal help, they don’t have a defence lawyer or they are not brought before a judge after they are detained in the pre-trial period.

BBC: Several months ago there were some reports about the torture in jails and detention centres controlled by the Afghan National Security Directorate (NSD) and there were also some reports about the rape cases in the female detention centres, do you have any findings about these issues?

UNAMA HRU: Again a very interesting, useful question. Let me just explain that the monitoring that UNAMA Human Rights did was on arbitrary detention. It was not focused on the NDS or on torture. Of course we are quite conscious based on other reports and studies that torture is a problem in this country. You referred to conditions and detention, I think Christina is better placed to answer that question or to comment on it. And then you mentioned the very painful story and reality of rape in this country and that quite frequently females, women and young girls are often doubly victimised. If they go to the justice sector mechanism for help report it, quite often they receive the same kind of treatment. This is a huge issue in this country and something that UNAMA Human Rights will be giving more attention to as we go to the New Year.

UNODC: The question of rape by the police, as Norah mentioned, is extremely extremely serious, because the police are there to protect you. If you turn to them for protection and then you are abused again, that is an extremely serious issue. It points to the fact that we need to talk about these things publicly. As Norah said that UNAMA is going to look into that, I am very glad to hear that.

IRNA [translated from Dari]: Mrs. Oguz did speak about alternative imprisonment. Would you like to tell us how feasible it is given the fact that Afghanistan is a traditional society?

UNODC:  I do not know if it has to do any thing with being conservative or not. I think that there are enough people than we think, I am talking about the majority of people here who want life and liberty and dignity. I think that the problem is not with the people and I think may be with the people who decide rather than ordinary people in the village or in the street.  I think it has more to do with the lack of infrastructure in the local communities and the lack of social services.

There are two things: one is to think differently about crime and punishment as I said. And to really emphasis to you that are not guilty until you have been found guilty. The second thing is to start to think about what you do with criminals. You want them to be rehabilitated. You do not want them to go out again and commit the same crime over and over again. You want to give them a chance to do something different with their lives and to become productive members of the society.  For this you have to create institutions within the communities.

Back to rape: I think there is something extremely fundamentally wrong if the institution that has been put there by the state to protect your dignity is raping your dignity.

IRIN: Question to Norah. There are unverified reports that hundreds of civilians had been detained arbitrary by all warring parties in Afghanistan including international forces and they have been tortured, have you investigated such cases?

UNAMA HRU:  Thank you for this question. We are aware of these reports. We have some insight to the problem but we have not studied or examined it due to lack of resource and lack of access in any kind of comprehensive manner. So we are very conscious of the problems. We have met some people who have left detention centers where had been tortured and have talked about it.  So it is definitely a problem.

Unfortunately we do not have yet a comprehensive picture. Other organisations such as Amnesty international provided a report at the end of last year about Afghanistan. So it is a huge concern. It is also something I mentioned that we are organising ourselves to give more attention to the issue of rape next year. The issue of detention and torture related to war is also something we are mobilising ourselves to take a stronger look at.

Thank you very much and thank you to our guest speakers.