We are working to ensure that survivors of violence are fully cognizant of their rights to protection and compensation under the Afghanistan Criminal Procedure Code 2014. Though Afghan laws are progressive in theory, the question that arose for us were:
How do lawyers take out procedural applications for our clients?
How do we move the prosecution and police to take action?
How can we hold them accountable when they fail to do so?
We brought together lawyers and judges in India, Nepal and United Kingdom, as we wanted to tackle this from a practical angle (what is the cause of action, which court and who do we hold accountable) whilst ensuring we were present to gender-blind practices which due to its pervasiveness in legal practice, cause us to negate the seriousness of violent crimes.
Indeed, “compensation” and “protection” is new to criminal practice in Afghanistan, and, there is no framework for quantifying compensation (how do you quantify a broken elbow?), something which remains an issue which we are determine to address.
In Kabul, we held discussions with the lawyers from Mazar-e-Sharif and Herat, and, tried to figure out the quickest and easiest way to quantify compensation before a Judge who may be new to this. As each province is vastly different from one to the other, the challenges were also different and we continue to address them one-by-one.
Nonetheless, Kabul lawyers opened new grounds for compensation and protection petitions. In one case, a Prosecutor was pleasantly surprised and admitted that he had not personally considered the right of compensation alongside a criminal suit and commended Kabul lawyers for their efforts.
In one of the cases, the client was a 22-year old woman. Her husband of 8 years and mother-in-law were beating her constantly. She filed a complaint, but later withdrew it out of fear and pressure. The mental and physical suffering and abuse was overwhelming. On one occasion, her husband threw his urine on her face and when asked why she was being treated so inhumanely, her husband told her that he did not accept her as his wife.
Over time, her husband slashed her hip with a blade and asked her to perform illegal form of sexual intercourse. The abuse extended to the children, and every night her husband sexually abused their 6-year-old daughter.
Finally, the client attended the Mediation Centre to meet with one of the Kabul team’s lawyers. The client was also referred to MA’s social workers for counselling.
A criminal action was filed against the client’s husband. The lawyer spoke to the Prosecutor-in-charge to ensure that he simultaneously filed a petition for compensation. In the meantime, the lawyer helped the client to gather receipts from the hospital to ensure that her medical and related expenses were properly documented for her compensation claim. A petition for compensation was drafted to ensure that all the treatment, medicine and transportation costs incurred by the client, would be outlined in the Petition. This was also to avoid lapses in the work of Prosecutor who may not have been similarly trained to draft compensation Petitions. The Prosecutor was cooperative and organised questionnaires to be sent to the examining doctor to ensure that all her injuries and expenses would be thoroughly documented.
Eventually, the Court found in favour of the client. Her husband was sentenced to six months’ imprisonment under Article 22 of EVAW Law. Under Article 41 of EVAW Law, the court ordered her husband to pay her compensation of 1950 Afghanis. Although the Prosecution had indicted the husband with rape pursuant to Article 17 of EVAW, the Court found that there was lack of evidence to support the indictment. The case is still under review. Nonetheless, the client and her mother were very grateful and thanked the lawyer for defending her rights when she needed it most.
We still have a long way to go to secure compensation for our clients. Some clients have shared that they do not want compensation so as not to delay proceedings. Therefore, prompt and timely proceedings is also something we need to tackle at the same time. We are also struggling to quantify compensation for pain and suffering (general damages) and we are hoping to submit a Petition to the Supreme Court in the future to address this.
We like to thank the following people for their inputs and encouragement:
The Honourable High Court Judge of Nepal, Mr Tek Narayan Kunwar,
Professor Rosemary Hunter of Queensmary Law School, University of London; and
Mr Manu Yadav, Advocate of the Supreme Court of India.
We know that the first time of any cause is the longest and steepest bend. But we are determined to proceed!
“Congratulations to you, your team and the lawyer who won compensation for the survivor. It's a movement towards the right direction and I am sure, in times to come, the legal fraternity is going to play a crucial role in the establishment of rule of law in Afghanistan. As lawyers, we have an important role to play in shaping a good future of the nation. All the very Best for that.”
Mr Manu Yadav
Advocate of the Supreme Court of India