Practice Relating to Rule 99. Deprivation of Liberty
Afghanistan’s Presidential Decree on Good Governance (2012) states:
Article 11. The judicial institutions are instructed that no individual by no means shall be arrested or detained without legal basis nor shall be detained more than the period s/he was sentenced by court. …
Ch. 6. General Attorney Office:
[With]in one month, all individuals, kept in detention centers, shall be scrutinized by the concerned attorneys’ offices [to] prevent … arbitrary detention (detention without evidence and proof) and [they shall] present [a] complete list of detainees, explaining their charges, to the Judicial and Justice Committee.
In 2012, the Office of the President of Afghanistan issued a press release entitled “Judicial meeting assesses administrative detention in the light of Afghan laws”, which stated:
The judicial meeting chaired by President Hamid Karzai discussed and assessed various issues including continued detention of over 600 Afghan inmates by US forces, additional Protocol II to the  Geneva Convention[s] and administrative detention in the light of Afghan laws.
At the meeting held in the Presidential Palace, it was noted that based on Article 7 of the Afghan Constitution, the State of Islamic Republic of Afghanistan shall abide by the international treaties and conventions that it has signed.
Hence, Afghanistan fully observes and respects the additional Protocol II to the Geneva Convention that has enshrined in its provisions, the principles of human rights and treating prisoners humanely.
It was also stressed that the administrative detention is not foreseen in the Afghan laws; therefore Afghan nationals could only be deprived of their liberty in the light of existing laws of the country.
According to the MoU signed between Afghanistan and the United States, foreign forces do not have the right to detain Afghan citizens or run prisons in Afghan territory.
Afghanistan’s Interim Criminal Procedure Code (2004) states:
Conduct of the Hearing.
3. The Court proceedings are conducted according to the following order:
b. When the accused is under detention the Court shall immediately assess the legality of the arrest and order the liberation of the accused … [if] the arrest was unlawful or not necessary.
Afghanistan’s Presidential Decree on Special Operations (2012) states:
Handing over the Special Operations from … NATO to [the] mixed – MoD [Ministry of Defence], MoI [Ministry of the Interior] and NDS [National Directorate of Security] – Afghan security forces was an essential [step] to ensure and guarantee the national sovereignty and rule of law in Afghanistan. Implementation of such operation[s] makes the responsibilities of the judicial and justice bodies harder, and requires them to have a[n] [in-]depth concentration on the fundamental rights and freedom[s] of the citizens, guaranteed in the Constitution and Criminal Procedure Code in [all] phases – inspection, detection, investigation, prosecution and trial.
Thus, I order observance of the following provisions … :
6. Operational force[s] can't arrest or detain the accused person without prosecutor's warrant, except [in] flagrante delicto (immediate situation).
7. Arrest and detention should be based on sufficient reasons in accordance with the law. The [files of i]ndividuals, who are kept [as] suspicious in … custody, should be completed in the legal time frame and be submitted to the investigation bodies.
Afghanistan’s Criminal Procedure Code for Military Courts (2006) states:
Before taking any action, persons in charge of discovery, investigation and trial are required to inform the suspect or the accused of the following rights:
2. The right to be informed of the nature of charges and investigation.