- ILF-Afghanistan: 2003 - 2005
When it opened in 2003, the ILF-A’s first task was to tackle the lack of a criminal defense culture, the lack of analytical skills, and the absence of systematic criminal defense practices among Afghan lawyers and jurists generally. Since then, ILF-Afghanistan staff attorneys have been trained and guided by experienced criminal defense lawyers – known as International Fellows – one third of who have come from Canada with the rest coming from the USA, Britain and Germany. The Afghan lawyers now conduct investigations on behalf of their clients and make proper type-written submissions to the courts, supported by correct legal arguments.
With the assistance of International Fellows, ILF-A staff attorneys have learned to systematize their practice, preparing form letters for routine tasks such as requesting files from the prosecutor and standard motion-letters for recurring issues. These motion-letters are used for routine but essential matters, such as challenging a court’s failure to notify counsel of a trial date or requesting a detainee’s release for failure to issue an indictment within the allotted statutory time-frame. These documents, used and disseminated by ILF-A during its training and awareness workshops, are now being employed on a widespread basis by many lawyers practicing criminal defense in Kabul.
Other significant achievements in 2003-05 include the development of effective administrative and legal systems for the five ILF-Afghanistan offices, an effort that is not only integral to ILF-A’s work but also to the long-term viability of a nationwide Public Defender’s Office. ILF-A has already pioneered a number of internal systems including a detailed practice manual to streamline the analysis of cases, a case management system, and the use of defense teams to allow lawyers to limit the time wasted in courts waiting for judges, trials, prosecutors, and files. Moreover, ILF-A has instituted the following:
- In-house continuing legal education: ILF-Afghanistan conducts weekly in-house continuing legal education programs for its attorneys. International Fellows, as well as the senior Afghan attorneys, discuss new issues and new legislation. Afghan lawyers also present and discuss the cases that they feel require input from their colleagues.
- Case tracking and management: ILF-A has developed a system for tracking and managing its caseload, including key information on the defendant, alleged crime(s), contents of the case file, court dates, and the like. ILF-A has a user-friendly database for use in Kabul, provincial offices, and country-wide analysis.
- Notice of new legislation and presidential decrees: ILF-A systematically collects and disseminates among its offices and lawyers any new legislation or presidential decrees with relevance to criminal defense, police and court functioning, or prison administration.
All of these efforts have contributed to the higher standards of representation for detainees and to a greater respect for human rights. In advancing individual cases, ILF-A has had a noticeable impact on the criminal justice system in Afghanistan. Prosecutors, police, wardens, and other judicial officials are learning not just how to respect the rights of those in detention or on trial, but also how to uphold the rule of law in a more fundamental way. The proactive criminal defense practiced by ILF-A has convinced many in the legal community of the importance of criminal defense, and ILF-A’s efforts have had a systemic impact in the following respects:
- Spreading a culture of criminal defense:ILF-A is spreading a culture of criminal defense through the proactive practice of its lawyers in the courts and its workshops. ILF-A lawyers now understand their critical role in the criminal justice system and the democratic process. As a consequence, ILF-A’s Canadian and US International Fellows along with their Afghan colleagues are asked repeatedly to conduct workshops on criminal defense.
- Promoting criminal defense principles through workshops: The numerous requests that ILF-A receives for practical defense workshops are further evidence of its effectiveness in the criminal court system. ILF-A has trained groups in Afghanistan practicing criminal defense, including the Legal Aid Office of the Supreme Court, and participated in defense workshops conducted by others. ILF-A will go on conducting small seminars for judges and prosecutors in the provinces on “what to expect from the defense” and will add workshops for the police. In addition, because there is a shortage of defense attorneys throughout Afghanistan, ILF-A attorneys have conducted workshops for community leaders as well as prison inmates to help them to understand and demand their rights.
- Fighting new incremental encroachments on the right to counsel: The year 2005 saw a disturbing trend of interference with the meaningful right to counsel. In May, a presidential decree was issued requiring numerous witnesses to an attorney-client contract. In criminal cases, where clients are incarcerated, the requirements were extremely time-consuming, making it virtually impossible for counsel to be present at the early and critical stages of criminal proceedings as permitted under the Criminal Code. ILF-A was highly instrumental in the adoption of an amendment to the decree making criminal defense lawyers exempt from the requirements. In another instance, a proposed law regulating criminal defense lawyers included alarming limitations on the sanctity of the lawyer-client relationship. ILF-A, collaborating with other practicing lawyers in Kabul, presented comments on the legislation leading to its redrafting. Individual judges were also interfering in the proper defense of the accused. (For example, a judge of the National Security Court, who in 2004 asked ILF-A to represent detainees in the National Security Courts, has frequently denied ILF-A access to detainees accused of national security crimes, their files and on occasion, the trial. Access to the court itself has improved somewhat but access to detainees, files and trials remains problematic. ILF-A will continue to fight against any encroachment on a meaningful right to counsel.)
- Challenging unlawful pretrial detentions: Though there it is difficult to discern a national trend towards a decrease in pre-trial detention time, the number of ILF-A clients released pre-indictment has increased, suggesting that the presence of counsel has a strong positive effect.
- Combating corruption: Corruption is rampant in the criminal justice system. When ILF-A represents a client, however, judicial officers generally refrain from requests for payment for release because ILF-A is well known to oppose such practices.
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