Practice Relating to Rule 99. Deprivation of Liberty
Section B. Deprivation of liberty in accordance with legal procedures
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.