unclassified / for training purposes dyncorp international sept 2009 michael mota executive mentor...

UNCLASSIFIED / FOR TRAINING PURPOSES


DynCorp InternationalSept 2009

Michael MotaExecutive Mentor

ACAS

[email protected]

Afghan Legal System




“Law is the soul of the police.”

Col Mohammed Nasser Afghan National Police

Afghan Legal System



Why are we here?



Attorney General’s Office (AGO)◦ primary legal office◦ criminal prosecutions

Ministry of Interior (MOI)◦ police services

Ministry of Justice (MOJ)◦ prison system◦ legislative review

The Judiciary◦ Supreme Court◦ Appellate, Primary Courts

Primary Justice Sector Offices



Formal System

Informal System

Afghan Legal System



Mixed system◦ Civil & Religious Law

Constitution◦ 2004

Criminal codes and statutes◦ 1976 – Penal Code◦ 1978 – Law on Discovery and Investigation◦ 2004 – Interim Criminal Procedure Code (ICPC)◦ 2004 – Anti-Money Laundering Law◦ 2005 – Police Law◦ 2005 – Counter Narcotics Law

Formal Legal System - Afghanistan



Common Law◦ Canada, Pakistan, Singapore, England, United States

Civil Law◦ France, Germany, Japan, Mexico

Socialist Law ◦ Russia

Religious Law ◦ Saudi Arabia, Iran

Major Legal Systems Worldwide



Common Law◦ Law derived from custom – English Law◦ Emphasis on rulings by judges in previous cases; case

law, precedent, stare decisis◦ Trials adversarial not inquisitorial

Civil Law◦ Law derived from formal, written laws- Roman Law◦ Emphasis on interpretation of legislative codes,

statutes, not case law◦ Previous decisions not binding, referenced◦ Trials inquisitorial not adversarial

Common Law v. Civil Law



Mixed System - Civil & Religious Law Trials (inquisitorial)

◦ No juries◦ Three judge panels◦ Witnesses may testify ◦ Evidence in case file

Courts◦ Primary◦ Appellate◦ Supreme

Appeals ◦ Either party◦ Trial de novo

Formal Legal System - Afghanistan



Generally◦ 160 articles◦ In the Name of God, The Merciful, The Compassionate

Supremacy of Islam◦ No law shall contradict the provisions and beliefs of Islam

(Article 3)

Individual Rights◦ Presumption of innocence (Article 25)◦ Due process guaranteed (Article 27)◦ Torture prohibited (Article 29)◦ Right to an attorney (Article 31)◦ Freedom of expression (Article 34)◦ Equal rights for all citizens (Article 22)

The Afghan Constitution (2004)



Passed July 2009

Applies to Shia Muslims (20% population)

Duties of spouses◦ husband may have as many as four wives◦ marriage permissible for girls less than 16 yrs◦ wife may not leave the house without husband’s

permission, except for “legitimate purposes”◦ wife may be denied maintenance – food, medical

care - if she refuses intimacy

Shia Personal Status Law



Constitution (2004) ◦ Discovery of crime shall be the duty of the police◦ Investigation ... shall be the responsibility of the

Attorney General’s Office (Article 134)

Interim Criminal Procedure Code (2004)◦ Prosecutors investigate on their own ... or with

collaboration of the judicial police (Article 23)◦ Judicial police perform ... direction and

supervision of the Saranwal (Article 29)

Provisions of Afghan LawCriminal Procedure



Police Law (2005)◦ Arrest◦ Interrogation◦ Searches

Internet reference

afghanistantranslation.com

Provisions of Afghan LawCriminal Procedure



Homicide Abduction Forgery Banditry Drug abuse Running away Adultery Abortion Gambling Drinking alcohol

Provisions of Afghan Law Common Criminal Offenses



Based on Religious or Sharia Law from Qur’an

Prevalent in rural areas◦ limited government presence

Administered by Elders or Tribal Councils◦ shura or jirga◦ generally lesser cases◦ not necessarily Taliban

Informal Legal System - Afghanistan



Informal Legal System – AfghanistanJanuary 2009



Endemic

Integrity Watch Afghanistan – Corruption Survey◦ Afghan Perceptions of Corruption (2007)

77% believed corruption prevalent in public sector 64% said they had paid bribe(s)

MOI Salaries◦ Patrolman - $80 month◦ General - $800 month

Bribery most common form (bahk-sheesh)

Corruption



Anti-Money Laundering Law (2004) Counter Narcotics Law (2005) Penal Code (1976)

Significant Anti-Corruption Laws



Defined◦ Conceal, disguise, convert, transfer, acquire,

possess, or use proceeds of crime (Article 3)

Accomplice Liability◦ Penal Code (Articles 39-43)

Law of Conspiracy ◦ Penal Code (Articles 49-52)

Anti-Money Laundering and Proceeds of Crime Law



Counter Narcotics Law

Defines ◦ Surveillance◦ Electronic Surveillance◦ Covert Ops◦ Undercover Ops◦ Possession



Counter Narcotics Law Article 21

◦ No person shall threaten or intimidate a public official investigating a drug trafficking offense

Article 43◦ Law shall apply to ... offenses involving bribery,

corruption, violence, and money laundering

Article 47◦ Evidence properly gained through ... covert

investigative methods ... shall be admissible in all court and other legal proceedings



Article 254◦ No public official shall request or receive ...

money, benefit, promise, gift

Article 257◦ No person shall force a public official through moral

or material pressure ... to perform an unrightful work

Article 260◦ No person shall present or offer a bribe to a public

official

Penal Code - Bribery



Permitted by Afghan Law◦ Surveillance◦ Electronic surveillance and recording ◦ Consensually recorded phone calls◦ Undercover operations◦ Marked or photocopied cash◦ Informants

Court order required◦ Wiretaps◦ Surveillance or recording in private settings

Techniques used on limited basis

Special Investigative TechniquesNarcotics & Corruption Offenses



Why are we here?



Why are we here?

Establish Rule of Law




“Law is the soul of the police.”

Col Mohammed Nasser Afghan National Police

Afghan Legal System




Michael MotaExecutive Mentor

ACAS

[email protected]

Afghan Legal System

unclassified / for training purposes dyncorp international sept 2009 michael mota executive mentor...

Documents

training purposesunclassified

training purposesconstitution

training purposespassed

training purposeswhy

training purposescommon

adversarialcommon law

citizens article

attorney article