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THE ROLE AND POSITION OF THE PUBLIC PROSECUTOR IN SECURING
CRIMINAL JUSTICE ACCORDING TO THE CRIMINAL PROCEDURE LAW OF
AFGHANISTAN
Abdul Khaliq Haqqani Heravi
Teaching Assistant.
Member of the Academic Staff, Faculty of Sharia and Islamic Sciences, Jami University of
Herat, Afghanistan
Abdul Ghafoor Hakimi
^1^
Master's Student in Criminal Law and Criminology, Faculty of Law and Political Sciences, Jami
University of Herat, Afghanistan
^1^ Corresponding Author: Ghafoor Hakimi
https://doi.org/10.5281/zenodo.17688147
Abstract
. The Prosecutor (Sarnwal / Public Prosecutor) as one of the most important
pillars of the criminal justice system plays a fundamental role in guaranteeing the rights of the
parties to a case and ensuring social order and security. The Criminal Procedure Law of
Afghanistan has outlined the duties and authorities of the Prosecutor at various stages of
litigation, from the discovery of a crime and preliminary investigation to trial and execution of
the sentence. The importance of this research lies in the fact that the efficiency and independence
of the Prosecutor's Office can directly impact the realization of criminal justice and increase
public trust in the judicial system. The main research question is: What is the position of the
Prosecutor according to the Criminal Procedure Law of Afghanistan and what is their role in
securing criminal justice? The research hypothesis is that the Prosecutor, possessing legal
authorities and institutional independence, plays a pivotal role in guaranteeing criminal justice,
protecting the victim, and safeguarding public interests. This research has been conducted using
library resources and a descriptive-analytical method, examining laws and legal documents. The
findings indicate that strengthening the independence and specialized capacities of prosecutors
can reduce existing challenges in the criminal litigation process and enhance the position of this
institution in realizing criminal justice.
Keywords:
Prosecutor, Criminal Justice, Criminal Procedure Law of Afghanistan,
Investigation.
Introduction
The institution of the "Prosecutor's Office" (
Sarnwali
) is considered one of the
fundamental pillars of the criminal justice system; an institution that is not only legally important
but has also been addressed from social, moral, and human perspectives in laws. In the legal
system of Afghanistan, the Criminal Procedure Law, as the main framework for criminal
procedures, has precisely specified the duties and powers of the Public Prosecutor and explained
their role in guaranteeing the rights of the parties, securing justice, and maintaining public order.
The Public Prosecutor plays a central role in the realization of criminal justice at various
stages of litigation, from the discovery of the crime and preliminary investigations to trial and
execution of the sentence. The importance of this matter becomes more apparent when we
realize that abuse of authority, failure in performing duties, or lack of transparency in the
performance of the Prosecutor can lead to the violation of the accused's rights, harm to the
victim, and public distrust in the judicial system.
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Legal and jurisprudential literature shows that numerous scholars and jurists such as
Ardebili, Khaleghi, and others have elaborated on the principles and rules of criminal procedure
and the position of the Prosecutor, but few studies have coherently examined the role and
position of the Prosecutor (Public Prosecutor) in securing criminal justice by directly referencing
the Criminal Procedure Law of Afghanistan.
Accordingly, the aim of this research is to explain the legal position and analyze the
duties and authorities of the Prosecutor within the framework of the Criminal Procedure Law of
Afghanistan, and to examine their role in guaranteeing the rights of the accused, protecting the
victim, and safeguarding public interests. To achieve this goal, this research attempts to answer
questions such as: What is the position of the Prosecutor in the Criminal Procedure Law of
Afghanistan and what is their role in securing criminal justice? What is their role in guaranteeing
criminal justice and protecting the rights of the parties? The researcher's hypothesis is that the
Prosecutor, possessing legal authorities and institutional independence, plays a central role in
guaranteeing criminal justice, protecting the victim, and preserving public interests, and what
challenges exist in the path of performing their duties? The research method in this study is
descriptive-analytical, and using library resources, especially the Criminal Procedure Law of
Afghanistan, the Constitution, related laws, and legal scholarly works, the position and role of
the Prosecutor have been analyzed. An effort has been made to present a clear and documented
picture of the position of this institution in the criminal justice system of Afghanistan by
accurately citing legal texts, and to provide a basis for its reforms and improved functioning.
1. Conceptual Framework
Every research contains a set of general topics and a series of concepts and terms that
play the main role in that research. Defining and explaining key terms, fundamental concepts,
and outlining the general issues of the research is considered a groundwork for entering the main
discussions of the study and helps prepare a clear and transparent space for understanding the
main issues.
1.1. Concept of Prosecutor's Office (Sarnwali):
"Sarnwali" is a Pashto word, derived from "Sarna". Its meaning in Dari is supervision,
observation, scrutiny, and evaluation. Its concept implies that an action is performed on a subject
or an object after careful examination.
1.2. Concept of Prosecutor (Sarnwal):
This term refers to a person appointed by the government to enforce the law uniformly.
In our country, any officer performing professional duties within the prosecutor's office is
called a "Sarnwal" (Step by Step, 2020).
1.3. Concept of Fair Trial:
Not only must the establishment of a court comply with the law and international
standards, but its procedural law must also adhere to clear and recognized international
principles and standards. Adjudicating disputes and criminal accusations requires a fair trial,
which necessitates predetermined procedural law and a set of basic conditions (Kashani, 2004:
201). A fair trial is a process based on the principle of innocence and the preservation of human
dignity; adherence to its requirements promises dignified conduct and judgments based on
justice and fairness. A criminal trial is fair if conducted by an impartial and unbiased court,
based on legal formalities, and during which the fundamental and legal rights of the accused are
respected (Amadeh, 2009: 17).
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1.4. Concept of Criminal Justice:
Criminal justice means administering justice towards those accused of committing
crimes. This concept encompasses the set of laws, procedures, and institutions used to administer
justice concerning crimes and criminals. In fact, criminal justice seeks to maintain social order
and protect citizens from harm by applying punishment and reforming offenders (Omidi, p. 22).
1.5. Concept of Criminal Procedure Law:
The law that regulates the stages of criminal litigation from the discovery of the crime to
the execution of the sentence (Akhundi, 1989: 20).
1.6. Concept of Investigation:
"Tahqiq" is an Arabic word and term meaning "to search". Investigation is defined in
Clause (2) of Article (23) of the Provisional Criminal Procedure Law as follows: "The main
purpose of criminal investigation is to discover the truth." Although the aforementioned
definition primarily points to the purpose of investigation, we can also infer its definition from it.
Alternatively, "Investigation means reaching the truth and resorting to legal procedures to
ascertain the truth of the matter."
2. History of the Prosecutor's Office in Afghanistan
In the year 1300 A.H. (1921 AD), the Fundamental Organization Regulation was
published and enacted. The State Council was established at the center, and in the provinces, the
High Government and advisory councils of the kilans (major provinces) were formed. The
jurisdiction over officials' trials belonged to the State Council and advisory councils.
Consequently, there was a need for criminal prosecutors at various stages of trials to
pursue accusations and file cases against accused officials as prosecuting attorneys. Later, the
times demanded the existence of a prosecutor for matters involving "Huquq Allah" (Rights of
God). This necessity facilitated the inclusion of annexes in the Fundamental Organization
Regulation of Afghanistan. For the first time, the term "Prosecuting Attorney" was used.
According to the mentioned annex, the Prosecuting Attorney at the center was appointed
by the Ministry of Justice, and in the provinces by the Deputy Governor or High Governor.
Then, in the Constitution of 1343 A.H. (1964 AD), the Office of the Public Prosecutor was
established as an official state organ. It was recorded in (Article 103) as follows: "The
investigation of crimes is carried out by the Public Prosecutor, who is part of the executive
branch of the government, in accordance with the provisions of this law." In the 1964
Constitution, in the chapter on the judiciary, due to the similarity of functions and based on legal
definitions that unified accusation and trial, the standing judiciary was termed "accusatory
judiciary" and the sitting judiciary was termed "adjudicatory judiciary." The Law on Organizing
the Affairs of the Prosecutor's Office was enacted on 26 Aqrab 1343 A.H. (November 16, 1964)
with 24 articles and published in issue number 17 of the Official Gazette. This law introduced
the Prosecutor's Office as the High Office of the Public Prosecutor and the Attorney General as
the Public Prosecutor of Afghanistan. Afterwards, on 25 Hamal 1359 A.H. (April 14, 1980), the
Fundamental Principles, which served as a provisional constitution, were approved by the
Revolutionary Council of the time. They became effective on 7 Sawr 1359 A.H. (April 27,
1980). Article (58) of this law separated the Attorney General's Office from the Ministry of
Justice of Afghanistan for the first time and considered it an independent organ within the state
structure. This article placed the Attorney General's Office as a unified system based on the
principle of centralization and leadership of prosecutor's offices under the authority of the
Attorney General. In the year 1365 A.H. (1986 AD), changes occurred in the state leadership.
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The Constitution was approved by the Loya Jirga and signed by the President on 9 Hamal
1366 A.H. (March 29, 1987). Chapter Nine of this constitution specifically discusses the
Attorney General's Office. However, during the rule of the Islamic Emirate, based on Decree No.
"12" dated 16 Hoot 1375 A.H. (March 6, 1997), the Attorney General's Office was once again
downgraded organizationally and placed under the Ministry of Justice. Based on Decree No.
"109" dated 23/5/1419 A.H. (November 11, 1998), the authority of the prosecutor's office was
also delegated to judges. Article Twelve of this decree states: "The work of investigation of the
prosecutor's office is assigned to the judiciary. Judges are obliged to complete the case file
within one week and submit it to the court for decision." After the fall of the Islamic Emirate
government, in the month of Jadi 1380 A.H. (December 2001/January 2002), the Attorney
General's Office regained its structure and authority. The Constitution of Afghanistan was
approved by the Loya Jirga and signed and enacted by the President on 6 Dalw 1382 A.H.
(December 27, 2003). The Attorney General's Office also regained its credibility. Article (134)
of this law states: "The discovery of crime is carried out by the police, and the investigation of
crimes and filing of a case against the accused in court is carried out by the Prosecutor's Office in
accordance with the provisions of the law. The Prosecutor's Office is part of the executive branch
and is independent in its functions." After the formation of the elected government in
Afghanistan, the organizational structure of the Attorney General's Office also developed. This
office, which was previously a subset of the Ministry of Justice, was transformed into an
independent office. The High Office of the Attorney General had four deputyships, each of
which had several subunits (directorates) within its structure. This office had about 5,000
employees in the center and provinces. These employees included professional, administrative,
and hired staff. (Constitution, 2003) But with the return to power of the Islamic Emirate in 1400
A.H. (2021 AD), the Attorney General's Office was again abolished as in the previous period,
and its authority was delegated to judges. (General Directorate for Monitoring and Follow-up of
Decrees and Orders)
3. The Role and Position of the Prosecutor
The role of the Prosecutor, in accordance with Clause (2) of Article (23) of the
Provisional Criminal Procedure Law, is as follows: "The Primary Prosecutor, to achieve this
goal, considers the following situations:
1- Evaluating all aspects and evidence of the case.
2- Ascertaining whether a crime has been committed or not.
3- Identifying the responsible person or persons."
These three aforementioned objectives constitute the fundamental and basic aims of the
investigation because reaching the truth is impossible without the investigating Prosecutor
resorting to the three objectives mentioned above. These stated objectives of the investigation are
what lead the investigating Prosecutor to employ the essential means of proving the crime.
Although the three objectives above are briefly mentioned in the Provisional Criminal
Procedure Law, in order: the first objective involves the investigating Prosecutor's evaluation of
all aspects and evidence of the case, which means examining incriminating and exculpatory
evidence equally to achieve absolute justice. As an example, we will cite Clause (3) of Article
(24) of the Provisional Criminal Procedure Law, which refers to the Prosecutor's investigative
actions to achieve the aforementioned objective: Clause (3) of Article (23): "The Prosecutor,
while conducting investigations, is obliged to evaluate evidence proving or disproving the crime
equally and to consider the interests of the affected persons."
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To explain the second objective of the investigation, we must simply mention that it is the
investigating Prosecutor who, based on the sanctity of the profession, can determine through
various professional and legal methods whether a crime has actually occurred or not? Because if
a crime has not occurred, punishment lacks legitimacy. Achieving this objective without an
investigation is impossible; the investigating Prosecutor must resort to legal investigative
procedures to achieve this objective and determine whether a crime has actually been committed
or not. The third objective also points to a major and fundamental issue: that during the
prosecutorial investigation, achieving this goal means identifying the responsible persons who
bear responsibility for committing the crime. This is because whenever a person commits a
crime, they try to evade the law to escape punishment. Therefore, it is the investigating
Prosecutor who finds them through their professional actions and presents legally incriminating
evidence against them, and subsequently, through judicial prosecution by the trial Prosecutor,
they are brought to the bench.
4. Legal Authorities and Duties of the Prosecutor (Public Prosecutor) in the
Criminal Procedure Law of Afghanistan
4.1. Authority of the Prosecutor Regarding Release or Detention of a Suspect
According to Article 88 of the Criminal Procedure Law of Afghanistan, the Prosecutor
has the authority to act as follows after receiving the case file from the police:
4.1.1. If the detention of the suspect is not necessary, they immediately issue an order for
their release, as the situation may require, with or without financial bail, considering the
principle of innocence.
4.1.2. If the Prosecutor deems the detention of the suspect necessary for completing the
investigations and considering the circumstances of the crime and the suspect, according to their
legal authority, they can issue an order for the detention of the suspect for 7 working days in
misdemeanors and 15 working days in felonies.
4.1.3. In situations where the continuous presence of the suspect is necessary for
conducting the investigation, and at the same time, the nature of the crime in terms of severity
and lightness and the circumstances of the suspect do not require their detention, the Prosecutor
can obligate the suspect to report to the police station, or prohibit them from leaving the city or
frequenting specific places, or require a guarantee for appearance. This prevents the deprivation
of personal liberty on one hand, and on the other hand, ensures the suspect is present when their
presence at the Prosecutor's Office is necessary. (Rasouli, 2015, p. 202)
4.2. Authority to Demand Procedures
Considering Article 89 of the Criminal Procedure Law, the Prosecutor has the authority
to, in case of non-compliance with legal provisions or the existence of gaps and deficiencies,
send the case file back to the investigative authorities for correction of procedures and
completion. For example, if the Prosecutor observes that legal provisions were not observed in
preparing reports and collecting evidence, or if the case file was sent to the Prosecutor's Office
without sufficient evidence, they refer the matter to the investigative authorities for necessary
actions.
4.3. Authority to Demand Collection of New Evidence
When the case or case file documents are received by the Prosecutor's Office, according
to Article 90 of the Criminal Procedure Law, if the Prosecutor determines that in the referred
case, meaning there are other criminal aspects to the case or there are other individuals involved
in the crime as partners or accomplices against whom evidence has not been collected, then in
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relation to what has been referred to the Prosecutor, they carry out actions and simultaneously
obligate the police, national security officials, and other relevant judicial seizure officers to take
action regarding collecting evidence in such cases and against such persons.
4.4. Authority to Follow Up on Violations by Police and National Security Officials
If the Prosecutor observes that during criminal procedures related to discovery and
collection of information/evidence by the police or national security officials, illegal actions have
been performed, or they have been negligent in their duties, the Prosecutor can refer the matter to
the relevant institution to take legal action against such individuals. If the police or national
security officials have committed violations in their duties, they are referred to the relevant
institutions for these violations to be addressed according to the provisions of relevant laws and
legal sanctions, which may include recommendation, warning, salary deduction, and if
necessary, transfer or dismissal from duty.
Note:
What should be done if the mentioned officials commit a serious and intentional
crime? In cases where such illegal acts have been committed intentionally by police or national
security officials or other relevant judicial seizure officers, it is necessary for the Prosecutor to
prosecute them judicially according to legal provisions because, according to the Constitution
and other laws, all are equal before the law in terms of rights and duties, and committing a crime
by any person or institution must be punished. Without a system where punishment and penalty
exist and find their place, one cannot speak of reforming the system.
4.5. Authority of the Prosecutor in the Matter of Detaining a Suspect and Accused
The Prosecutor has the authority to detain a person for the first time for a period of 7 days
in misdemeanors and 15 days in felonies. According to (Article 100 of the Criminal Procedure
Law), if completing the investigation and preparing the indictment is not possible within this
period, the Prosecutor can request the extension of the accused's detention from the primary
court for ten days in misdemeanors and up to 30 days in felonies. If this period is still
insufficient, the primary court can, upon the Prosecutor's request, extend it for another ten days
in misdemeanors and another 30 days in felonies. In all these circumstances, it is stipulated that
the Prosecutor must pay more attention and decide on the temporary deprivation of liberty of the
suspect or accused only when there is a serious necessity. Furthermore, they must consider
proportionality. Although the law has specified certain durations, it is better to consider the
minimum of these terms. If before the expiration of this period, it is established by the
Prosecutor that there is no need to continue the temporary deprivation of liberty of the suspect or
accused, they can decide to release them with financial bail, a requirement to report, or other
valid guarantees.
4.6. Authority of the Prosecutor Regarding the Legality of Detention
The Prosecutor has the authority to detain a suspect or accused in the following cases:
4.6.1. If the crime is a felony and there is justified evidence indicating the commission of
the crime by the suspect or accused.
4.6.2. If the crime is flagrant (caught in the act).
4.6.3. If the identity or surname of the suspect or accused is unknown.
4.6.4. In cases where, based on the assessment of the relevant authorities, there is a fear
of the suspect or accused hiding or fleeing.
4.6.5. Situations where there is a possibility of the loss or alteration of evidence,
documents, and criminal records.
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4.6.6. If the suspect or accused does not have a permanent residence in the jurisdiction
where their case is being examined. In this case as well, since it may not be possible to summon
them and this would cause a waste of time for the official authorities, the Prosecutor may see fit
to take such action. On the other hand, if a person has no fixed job, is a repeat offender, there is a
possibility of crime being committed by them, or they cannot provide a guarantee to appear
before the relevant authority when necessary, in such circumstances, action is taken regarding
deprivation or restriction of liberty.
5. The Role of the Prosecutor before the Courts (Appeals and Supervision)
In this part of our discussion, we will point out the Prosecutor's role in having the authority to
appeal against the verdicts and orders of the courts to higher courts, because the Prosecutor is
one party to the case, and the other party in criminal matters is the accused. Principally, both
parties have the right to appeal the verdicts of the primary courts to higher courts; a three-stage
litigation process has been established to ensure greater justice. And to ensure justice, it is
necessary for the party to the trial who objects to the verdict or order of the court to submit their
appeal to the higher court. For instance, regarding the right to appeal, Article (63) of the
Provisional Criminal Procedure Law states: "The convicted person or the primary Prosecutor can
appeal against the verdict of the primary court." The appeal deadline and its procedure are
explained in Clause (3) of Article (63) of the Provisional Criminal Procedure Law: "The appeal
request is submitted to the registry of the court that issued the verdict or to the registry of the
relevant appellate court within (20) days..." In addition to the appeal in criminal matters,
cassation is also legitimate; the parties to the case, the Prosecutor and the convicted accused,
have the right to file a cassation appeal against the appellate court's verdict to the Criminal
Divisions of the Supreme Court based on the nature of the case. As Article (71) of the
Provisional Criminal Procedure Law states: "The convicted person, the victim, or the appellate
Prosecutor can file a cassation appeal against the verdict of the appellate court to the Supreme
Court in the following circumstances." The deadline for cassation appeal differs from the
deadline set for appeal; as recorded in Article (72) of the said law: "The objection request is
submitted to the registry of the appellate court that issued the verdict or to the registry of the
relevant chamber of the Supreme Court under the conditions mentioned in Clause (3) of Article
(63) within a period of (30) days." The appealing Prosecutor does not have absolute authority to
appeal against a court verdict; there are specific cases in which a verdict can be appealed if it
falls under those specific cases. And those cases are: error in the application of law and error in
the interpretation of law, which we will address each.
5.1. Error in the Application of Law:
If the appealing Prosecutor, during legal
supervision of the verdict, finds that the verdict was issued due to an error in the application of
law, they appeal against the verdict and submit their detailed appeal to the higher court. If the
appeal is against the verdict of the primary court to the appellate court, the appellate Prosecutor
submits their detailed appeal to the appellate court. And if the appeal is against the verdict of the
appellate court, a detailed appeal is submitted to the Supreme Court by the Prosecutor of the
Attorney General's Office. That is, from an organizational perspective, there is one Prosecutor
corresponding to each criminal court, and that same Prosecutor represents the case before the
court regarding the appeal. I want to clarify the term "error in the application of law" with an
example. For example, the primary court in a case of theft of property from Ahmad's house
sentences the accused to six months of enforceable imprisonment, while the accused in
committing this criminal act used police uniforms and duplicate keys, and also some aggravating
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circumstances mentioned in the law were present in this case. Since the verdict should not be for
a reduced punishment but for an aggravated punishment, therefore, in this case, the court has
issued the verdict with a legal error, and the verdict is appealed by the Prosecutor. To put it
clearly, if we state that the principle of proportionality between crimes and punishments has not
been considered in the appealed verdict.
5.2. Error in the Interpretation of Law:
If it is found from the court's verdict that an
error in the interpretation of law has occurred, then likewise, the court's verdict that contains an
error in interpretation is subject to appeal. Error in the interpretation of law refers to a situation
where the court has made a mistake in characterizing the crime. For example, the act committed
by the accused falls under the category of theft and the constituent elements of theft apply to it,
but the court punishes the accused with the punishment for brigandage (
qati' al-tariq
), while
there is a difference between the two crimes in terms of their constituent elements.
In this case, the court's verdict involves an error in the interpretation of law, and the
criminal characterization has been interpreted from theft to brigandage. The request for review
(
Tajdid-e Nazar
/Reconsideration) of the final verdicts of the courts by the Prosecutor in criminal
matters is a process established within the three-stage litigation system to ensure justice and
prevent injustice. The Prosecutor has specific duties and authorities in all three stages of criminal
litigation, as mentioned before, such as filing a case at the primary court stage, appealing or
accepting the verdicts of the primary and appellate courts. After the three-stage litigation
process, where the verdict reaches its final stage and is therefore called a final verdict (which
includes the verdict of the Supreme Court, as it marks the end of the litigation process), it is still
deemed necessary for ensuring justice and achieving criminal justice to have an extraordinary
additional process so that if the final verdict is also based on an error, an extraordinary stage
exists to correct that error. This stage is realized when its legal conditions are met and put into
practice, and that stage is the review stage (
Marhal-e Tajdid-e Nazar
).
Review is considered for the benefit of the convicted person and the offender, and review
of the final verdicts of the courts takes place in the presence of legal grounds. As Article (81) of
the Provisional Criminal Procedure Law has anticipated the conditions for review, stating:
"Request for review of final verdicts in misdemeanor and felony cases can be made for the
benefit of the convicted person in the following circumstances:"
5.2.1. If the facts on which the judgment is based are inconsistent with the facts present in
another final verdict.
5.2.2. When the criminal judgment is based on a judgment issued by a civil court and the
mentioned civil court judgment is annulled.
5.2.3. When after the judgment, events occur or documents are presented that were not
known at the time of the trial and these events or documents may prove the innocence of the
convicted person.
5.2.4. When false testimony, forgery of documents, or some illegal actions of witnesses
or experts are revealed, which the final verdict was issued based on.
5.2.5. When the accused is convicted in a murder case, new elements emerge that prove
the non-occurrence of the person's death.
5.2.6. If the judgment is issued at the end of the proceedings without formal notification
to the accused, or if during the trial the right to be present was not given to them, resulting in
them being deprived of the right to choose a defense lawyer, or if the reason for the convicted
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person's absence was not clearly and truly known, or if the court did not pay attention to this
matter."
All six cases mentioned in the clauses of Article (81) of the Provisional Criminal
Procedure Law are sufficient for review; if the mentioned cases exist, the review stage is
initiated.
The question arises: what is the role of the Prosecutor in the review, and why have we
included this topic in this thesis?
The answer is: because it concerns review in criminal matters, and the Prosecutor has a
significant role in criminal matters that cannot be ignored. Therefore, the Prosecutor is one of
those who, by law, can request a review for the benefit of the convicted person if the six cases of
Article (81) of the Provisional Criminal Procedure Law exist. As Article (82) of the Provisional
Criminal Procedure Law states regarding this right of the Prosecutor: "The Prosecutor, and the
convicted person or their defense lawyer, their close relatives or their heirs have the right to
request a review of the final verdicts of the courts." In addition to the provision of the above
article, which gives the Prosecutor the right to request a review of the final verdicts of the courts,
the role of the Prosecutor in the review stage becomes significant. As regarding the review
procedures, the role of the Prosecutor is legally established. Regarding the role of the Prosecutor
in the review procedures, Clauses (3-5) of Article (83) of the Provisional Criminal Procedure
Law, mentioned below, explicitly state:
Clause (3): "The review request is evaluated and examined by a panel composed of one
judge from the Supreme Court and two judges from the appellate court, who are appointed by the
Chief Justice of the Supreme Court. The Attorney General expresses their opinion regarding the
review request."
Clause (5): "If the review request and its related case file are received by the Supreme
Court, the Supreme Court sets a date for the hearing of the case and notifies the appellant and the
Attorney General at least five days before the start of its session. The Prosecutor and the
convicted person or the defense lawyer have the right to express their views during the case
hearing session regarding the review."
6. Execution of Final and Definitive Verdicts of the Courts by the Prosecutor
When final and definitive verdicts of the courts are issued and the litigation process ends
as a result of these final and definitive verdicts, the need for their execution is felt because court
verdicts are ineffective without their execution; their effect lies in their execution. Since the
execution of verdicts is the duty of the executive branch of the three pillars of the state, and the
Prosecutor's Office, based on Article (134) of the Constitution, is part of the executive branch but
independent in its functions. The execution of final and definitive court verdicts is also carried
out by the Prosecutor's Office. In addition to the specific duties of investigation and judicial
prosecution, the Prosecutor's Office also bears the duty of executing court verdicts. As Clause (4)
of Article (8) of the Provisional Criminal Procedure Law states: "The primary Prosecutor's
Office implements the final verdicts. For this purpose, the appellate court and the Supreme Court
send the issued verdict back to the primary Prosecutor's Office along with the seized documents
and objects." The text of the mentioned article explicitly states that the primary Prosecutor's
Office implements the final verdicts of the courts because the case was judicially prosecuted
through the primary Prosecutor's Office, and the criminal case was initially filed in court. When
the litigation process concludes, it must return to the initial authority that filed the case.
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This is the reason why the legislator authorized the primary Prosecutor's Office to
execute the court judgment. And likewise, the legislator has addressed the appellate court and the
Supreme Court, stating that they should send the final and definitive verdicts of the courts to the
Prosecutor's Office so that the primary Prosecutor's Office can execute the judgment.
Conclusion
The institution of the Prosecutor's Office (
Sarnwali
) is a key pillar of Afghanistan's
criminal justice system, bearing grave and diverse responsibilities at various stages of criminal
litigation. The Criminal Procedure Law of Afghanistan elaborately specifies the authorities and
duties of the Prosecutor, from crime discovery and preliminary investigation, issuing detention
or release orders with guarantees, demanding the completion of investigations, collecting new
evidence, following up on violations by investigative and security institutions, to filing cases in
court and executing final judgments. These authorities are designed to secure the rights of the
parties to a case, guarantee the principles of a fair trial, and protect public order and interests.
According to the law, the Prosecutor is obliged to evaluate incriminating and exculpatory
evidence impartially and simultaneously safeguard the rights of the accused and the victim. The
Prosecutor's role in appealing verdicts and court orders to higher courts, as well as in the
cassation and review stages, is an important tool for monitoring the correct implementation of
the law and preventing judicial errors. Furthermore, the responsibility for implementing and
executing final court judgments is a vital executive duty defined for the Prosecutor's Office
within the framework of functional independence but within the executive branch. However,
historical and legal analysis shows that the independence, transparency, specialization, and
accountability of this institution have always faced challenges. Political changes, instability of
structures, and interference from other institutions have sometimes weakened the efficiency of
the Prosecutor's Office and created grounds for the abuse of authority or violation of the rights of
the accused and victims. To strengthen the role of the Prosecutor in securing criminal justice, it
is essential to undertake comprehensive legal and administrative reforms to guarantee
independence, enhance specialized capacities, create effective monitoring mechanisms, and
strictly adhere to the principles of a fair trial, so that this institution can properly fulfill its
primary mission, which is to secure justice, protect citizens' rights, and maintain public trust in
the judicial system.
References
1.
Fundamental Organization Regulation of the Afghan Government, 10 Hoot 1301 A.H.
(1922 AD)
2.
Constitution of Afghanistan, 9 Mizan 1343 A.H. (1964 AD), approved by the Loya Jirga
dated 17-22 Sunbula 1343 A.H. (September 1964)
3.
Provisional Constitution of 1359 A.H. (1980 AD)
4.
Constitution of 1366 A.H. (1987 AD)
5.
Decree No. 12 of the Amir al-Mu'minin (1997)
6.
Constitution of 1382 A.H. (2003 AD), approved by the Loya Jirga
7.
Criminal Procedure Law, published under serial number 1132, dated 3/12/1392 A.H.
(2013 AD)
8.
Law on the Structure and Authorities of the Prosecutor's Office, published under serial
number 1117, dated 22/4/1392 A.H. (2013 AD)
682
ResearchBib IF - 11.01, ISSN: 3030-3753, Volume 2 Issue 11
9.
Provisional Criminal Procedure Law for Courts, published in the Official Gazette serial
number 820, dated 6/12/1382 A.H. (2003 AD)
10.
Amadeh, Gholamhossein (2009), The Role of the Head of the Judiciary in the Criminal
Process of Iran, First Edition, Tehran, Dadgoster Publishing.
11.
Akhundi, Mahmoud (1989), Criminal Procedure, Volume 1, First Edition, Tehran,
Ministry of Culture and Islamic Guidance Publishing.
12.
Rasouli, Mohammad Ashraf (2015), Explanation and Description of the Criminal
Procedure Law, Second Edition, Kabul.
13.
Kashani, Mahmoud (2004), International Justice Standards, First Edition, Tehran, Mizan
Publishing.
14.
Omidi, Jalil, Legal Journal (2009), Prophetic Tradition and Criminal Justice, Law Journal
of Tehran University, No. 4.
15.
General
Directorate
for
Monitoring
and
Follow-up
of
Decrees
and
https://hds.gov.af/dr/%D8%AA%D8%A7%D8%B1%DB%8C%D8%AE%DA%
86%D9%87-%D9%84%D9%88%DB%8C-
%DA%85%D8%A7%D8%B1%D9%86%D9%88%D8%A7%D9%84%DB%8C
16.
https://zestanikzai.blogfa.com/post/27
17.
Step
by
Step
Law
and
Political
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