Afghanistan Analysts Network – English

Rights and Freedoms

Police Treated With Kid Gloves: The many flaws of the Farkhunda trial

Ehsan Qaane Kate Clark 17 min

An Afghan court has found 11 policemen guilty of dereliction of duty for failing to prevent the murder of religious student Farkhunda by a mob in the centre of Kabul on 19 March 2015. They were all sentenced to one year, the absolute minimum, which means also they may not have to go to jail at all and indeed could stay working in the area of the murder. This follows earlier verdicts which sentenced four men to death and eight others to 16 year prison terms for her murder. The remaining 31 people on trial, including eight policemen, have been acquitted for lack of evidence. AAN’s Kate Clark, Ehsan Qaane (himself a lawyer) and Naheed Esar consider the trial as a whole, questioning its fairness and its failure to find out how and why the police let Farkhunda’s savage murder happen.

Two and a half days of trial for 49 defendants only - one of the many shortcomings of the Farkhunda case at court. Photo: Pajhwok

This was a murder filmed and photographed, and the mobile phone evidence of it was used in the trial of 49 people for murder and 11 policemen for dereliction of duty (ghaflat-e wazifayi), with eight of the police also accused of failing to use their legal authority to stop a crime.

After trial proceedings lasting just three days, the judge, Safiullah Mojaddedi, delivered his first batch of verdicts on 6 May 2015 against the 30 people accused of Farkhunda’s murder:

4 sentenced to death for murder and the burning of a corpse

8 sentenced to 16 years imprisonment

18 acquitted

The judge then said he needed time to review the evidence in the outstanding cases, against the 19 policemen. 13 days later, on 19 May, he delivered his second batch of verdicts on the police:

11 sentenced to one year for dereliction of duty

8 acquitted for lack of evidence on charge of dereliction of duty

Acquittal of all those also accused of failing to use their legal authority to prevent a crime. (1)

Kind to the police?

Given the gravity of the consequences of the 11 policemen’s dereliction of duty, those one year sentences were astonishingly short. In fact, they are short enough to mean the 11 may not have to go to jail at all. Under the Military Criminal Code (which covers police, army and NDS), if an individual is sentenced to a prison term of one year or less s/he “can pass the period of their punishment in their work place.” (Article 7, Paragraph 2). The convicts receive half their salary and lose opportunities such as promotion or study, but otherwise continue to serve in their normal office (Articles 2, 3 and 4 of the Regulation of Habs-e Tatili – suspended imprisonment).

The judge could have given far heavier sentences. For the crime of dereliction of duty, Article 40 of the Military Criminal Code sets out different categories of punishment: if there is no “significant damage and serious consequences” (zarar-e sangin wa awaqeb-e zianbakhsh), the punishment should be a prison term of one month to one year (Para 1); if the damage is significant and serious, the punishment is 1 to 5 years (Para 2) (2). “Significant damage” is defined (Art 3) as costing financial losses of more than 100,000, but less than one million Afghanis, physical injury or damage to [military] vehicles. “Serious consequences” is defined as causing more than one million Afghanis worth of damage, death or more serious damage to property.

The judge did not mention exactly which part of the law he was using to sentence those convicted of dereliction of duty. It would appear, however, that he gave them the absolute legal minimum.

Moreover, acquitting all of those accused of not using their legal authority to prevent a crime meant, in effect, they were also protected from jail. The minimum punishment for this crime, if there is ‘significant damage and serious consequences’, is two years in jail. The judge gave the court no reason for these acquittals.

Already, the judge has been criticised for giving more time to the police, particularly senior policemen, to defend themselves, compared with the ‘ordinary people’ accused of murder (who got a few minutes at most) and spending considerably more time considering the police verdicts than those of the 30 murder suspects.

On the night of the first verdicts, he spoke to One TV, saying the delay in the police verdicts was necessary so that he could read through the evidence against them – 4000 to 5000 pages. In this interview, which he gave before he had read through the evidence or delivered his verdicts on the police, he already sounded as if he was defending them – explaining to the television audience why their radios had not worked and how difficult it had been, given the traffic congestion, for reinforcements to reach the scene, in particular the head of Police District 2 (PD2), Hasibullah. The ‘heavy traffic’ explanation was not very convincing, though, as we shall see.

Not surprisingly, suspicions have been raised that he let the police ‘off the hook’, for reasons unknown. Equally significantly, however, he failed to ensure the trial got to the bottom of why the police failed to protect Farkhunda and, in particular, how they had first got control over the mob and then lost it.

Murder on video

Farkhunda’s murder took place on camera in Kabul’s historic heartland (see this AAN piece about the social geography of the area, the shrine devotees, beggars, travellers, criminals and police). Speaking to two eye-witnesses, both previously known to AAN (a widow who frequented the shrine as a beggar and a woman who lives in the area and was on her way home from work when the murder happened) and examining the footage (links below), we have put together the following time-line:

Approximately 15.30 (timing from first eyewitness, the widow): Mullah Zainuddin accuses Farkhunda of burning the Quran after she had argued with him that selling amulets (tawiz) was contrary to Islam; he called on people to ‘defend Islam’. Farkhunda can be seen on video defending herself to men on the threshold of the shrine building inside the courtyard, heavily veiled with just her eyes showing.

Approximately 16.00 (timing again from the widow): still within the courtyard of the shrine, the beating starts. On video, one can see where the crowd parts as Farkhunda is propelled through it to shouts of the Islamic rallying cry “Takbir!” and “Kill her!” The police, some of whom have already been seen mingling in the crowd, shoot in the air. They manage to take control of the scene, demanding the crowd retreats – and they do, although the men are still angry and shouting Islamic slogans. Police and men in civilian clothes stand around Farkhunda between her and those who would attack her. She can be seen, wounded but walking, being helped away from the scene, but still inside the shrine courtyard, by what look to be a woman and a man.

16.30-17.00 (timing from second eye-witness, the woman on her way home from work): Farkhunda is taken out of the shrine, still alive but wounded and then being savagely beaten and run over by a car. The eye-witness described trying to get a policeman to intervene, but he told her, “Let them kill the atheist.”

Video shows Farkhunda outside the shrine being set upon by the mob. She has lost her headscarf and is being hauled up onto an iron roof. A policeman  reaches underneath her skirt to touch her as she is pulled up. She kicks at him. Then she is dropped from the roof and is kicked and beaten with a plank of wood. At this point, she is still trying to get up and protect her head from the beating. Later, she is motionless as the beating and abuse continues.

17.00: Second witness leaves the scene after seeing Farkhunda’s body taken to the nearby dried-up bed of the Kabul River and set on fire.

Video shows men jumping on Farkhunda, leveraging themselves up onto the arms of others to get more force and throwing huge rocks and lumps of concrete at her to chants of “Islam Zendabad!” (Long Live Islam!). They burn her corpse.

What were the police doing?

During the trial, questions to the police were side-tracked by discussion of a mysterious Arab – named Abdul Wahab – whom the police said they had caught with a suspicious electronic bag; they blamed him for having been unable to radio for reinforcements and blamed the lack of reinforcements on their failure to intervene. They also said they had captured the Arab, but after 48 hours, Kabul police chief Abdul Rahman Rahimi had ordered him set free.

The Arab, Rahimi and General Zahir Zahir (former head of Kabul police, now director of the Criminal Investigations Department) were all summoned the following day – day 2 of the trial. The two senior police officers confirmed that radios had not been working (for other, non-Arab related reasons). Zahir asked the court to be kind to the 19 police suspects because (apparently with no trace of irony) the police worked hard to secure Afghans lives. The judge thanked the police chiefs for their kindness in attending the court and (bizarrely, as they were not on trial) pronounced them innocent.

The court failed to ask many questions of the police.

For example, the duration of the murder – from first beating to setting fire to the corpse – was, according to eye-witnesses, about an hour. That was a long time for reinforcements not to have arrived. Even if radios were not working, mobile phones surely were. The head of PD 2, Hasibullah, for example, said he had only arrived at the shrine when Farkhunda’s body was in the river and burning. The judge repeated his claim on One TV (quoted earlier), saying he had been in the Serena Hotel “checking security” and heavy traffic had delayed his arrival. However, two policemen testified that he had arrived earlier when Farkhunda was still inside the shrine. Also, if traffic meant his car could not move, the Serena is ten, at most 15 minutes, walk away from the crime scene, less if he had run.

Moreover, the police on the scene at the start of the attack did actually already have the means at their disposal to control the crowd, as they showed by firing into the air. If necessary to stop a crime, they also had the legal authority to fire at the perpetrators (whether that would have been a good thing or not is debatable). The trial did not question how or why they let Farkhunda be taken out of the shrine compound, a small, easily defendable place; even with their small number, they were armed and the crowd was not.

In addition, there was also a policeman among those abusing Farkhunda – filmed groping her as she was dragged onto the roof. One of our eyewitnesses also spoke of having tried and failed to get one of the policemen to intervene; he stood by, it seems, because he approved of the murder. None of these issues were addressed in court.

We already know that the policemen in PD2 have a questionable reputation:

The majority of the policemen there have been assigned to the area for a decade now and have resisted all attempts to transfer them. According to a Ministry of Interior officer interviewed by AAN, policemen have developed a strong attachment to their posts of duty in PD 2, an area that is eminently commercial and offers additional income by levying protection money from shopkeepers and other businessmen in exchange for turning a blind eye on irregularities.

As matters stand, even the police who have been convicted will likely not be removed from PD2 because, as explained earlier, the jail term of one year they have been sentenced to can be served in their duty stations.

This trial provided no explanation as to why individual police had neglected their duty. Nor did the judge explain why he found no-one guilty of failing to use their legal authority to stop a crime. This and the extremely light sentences handed out give credence to those who believe the police were treated with kid gloves and the judge, in effect, failed to uphold the law or hold the police to account.

The 30 other verdicts

AAN has waited until the primary court finished its work before looking at the trial as a whole. As well as the police who were on trial, 30 others were charged with murder. The judge gave their verdicts two weeks ago. He did not explain the reasons for his verdicts on the charge of murder, but did cite various laws, so we have tried to extrapolate what he might have been thinking.

Four sentenced to death for murder and burning a corpse:

1 Zain ul-Abedin – known as Zainuddin, son of Gulbuddin

2 Muhammad Yaqub, son of Haji Malang

3 Muhammad Sharif – known as Sharaf Baghlani, son of Sharafuddin

4 Abdul Bashir, son of Abdul Shakur

The judge cited Article 395 of the Penal Code, which mandates the death penalty for very savage (wahshiana) murders, as well as those committed by more than one person; (3) he also used Article 22 of the EVAW Law on beating which leads to death (4) which, in turn refers back to Article 395 of the Penal Code. He made no explanation as to why he had found each of them, as individuals, culpable.

The judge gave no individual explanations for any of his verdicts. Information, however, can be gleaned from eye-witness, video, statements in court and the ‘accusation statement’; this is the document which was drawn up by the prosecutors and outlines the defendants, charges, evidence and requested punishments and is given to the court before the trial (not publically available, but seen by AAN). From all of this we know that:

Zainuddin was the mullah who initially made the false accusation that Farkhunda had burned the Quran and called on people to defend Islam.

Yaqub can be seen in footage throwing two big rocks on the half dead body of Farkhunda. He admitted to the rock throwing and to kicking Farkhunda twice.  He said he was only 16 years old at the time of the murder and therefore should have been tried in a juvenile court. His identity card showing his age was rejected by the court. He was one of only three defendants to have a lawyer, Massud Khorami. He told AAN the prosecutor had sent Yaqub to Forensic Medicine (teb-e adli) who had judged him on the hairiness of his body and face to be 19 to 20 years old. Khorami said when he tried to speak to the judge in court about this, he was cut off, with the judge saying Yaqub looked 20 to 21 years old.

Sharaf Baghlani had boasted about his part in the murder on Facebook: “Salaam: today at 4.00 pm, an atheist woman burned the Quran at the Shah-e Du Shamshira shrine. Afterwards, the religious people of Kabul, including myself, killed her. Hell shall be her place.” According to the accusation statement, Baghlani was involved from the beginning in the beating and was the one who burned Farkhunda’s scarf and clothing.

Abdul Bashir was a taxi driver who, according to the accusation statement had mostly been working between Taimani and Shah-e Du Shamshira for the last six years. He was accused of having been involved in the attack from the beginning and of having stabbed Farkhunda with a knife.

Eight other defendants were sentenced to 16 years imprisonment:

1 Ghiasuddin, son of Muhammad Ghani

2 Saif ul-Rahman, son of Abdul Rahman

3 Hasibullah, son of Nur Muhammad

4 Ikramuddin, son of Jalaluddin

5 Ghulam Muhammad, son of Lal Muhammad

6 Abdul Fatah, son of Ramazan

7 Muhammad Omran, son of Bahruddin

8 Mohmand, son of Dawlat Shah

The judge cited Article 22 of the EVAW Law without explaining why. It is not obvious why he cited it, but see footnote (5) for more detail on this. He made no explanation as to why he had given these men lesser sentences for murder; nor did he explain what individually he believed they had done.

18 acquitted (6). No explanation given to the court.

Flaws in court procedures

Much has been written on the flaws in Afghanistan’s judicial system. In this high-profile case, carried live on television, many of those problems were there for all to see. They included:

Only three of the 49 accused had defence lawyers, despite this being their legal right (7) and absolutely fundamental to any hope of getting a fair trial.

Defendants did have the opportunity to make statements (not the case in all trials), but some were cut short by the judge. He gave far more time to more senior people (high-ranking police) to speak. Mostly, defendants and the few defence lawyers were given only a minute or so to speak.

Defendants or their lawyers were not able to see the evidence against them before the trial. The one defence lawyer AAN has spoken to has still not seen the full case  (dosia) against his client, only the accusation statement from the prosecutors. This defence lawyer only got the legal paperwork the day before the trial.

Altogether, there were only two and a half days of trial for 49 defendants. The second day was largely taken up with the red herring of the Arab blamed for the police radio failure. The fourth and fifth days were used to deliver the verdicts. The judge told One TV, he had been able to act so swiftly because prosecutors had put together such a tight case. Even if this was the case, there was almost no opportunity for defences to be made or evidence questioned.

The defendants appeared to be accused en masse. There was no sense that the judge was trying to pin down individual acts on individuals.

Some defendants speaking in court accused the police of torturing them.

There was no attempt by the judge to explain his verdicts.

It was difficult to follow the judge’s application of the law; he cited articles sometimes, but in some cases it was not clear why (see footnote 6) and made some mistakes in his citations (see footnote 8).

In the case of the policemen on trial, the judge heard their statements and questioned them before (he said) he had read the case evidence. He also commented in public on these cases before delivering the verdicts.

When the judge spoke to the press after the first batch of verdicts – still on live television – he warned anyone opposing the court’s decision, saying they could be subject to criminal prosecution.

More trials? Appeals?

The legal process is not over. Either side can ask for an appeal, and those sentenced to death have to see their case re-examined by the secondary and supreme courts and for it to be authorised by the president before it could be carried out. There are also likely to be more trials of suspects who were arrested too late to be tried this time. The judge told One TV that one man from Kapisa and another from Mazar had been arrested and their cases were under investigation. It is also believed that three suspects, men named as Pahlawan, Pacha and Muhammad Hassan, are still on the run.

Farkhunda’s murder was deeply shocking to most Afghans (see our dispatch on soul-searching and attempts to explain the savagery and, by some, to justify it). In this, it was reminiscent of the rapes of women members of a picnicking family travelling back from the resort town of Paghman to Kabul city on 23 August 2014 (see also AAN analysis here). Those accused of the ‘Paghman rapes’ were tried two weeks after the attack (7 September) and executed a month later (8 October). In Farkhunda’s case too, Afghanistan’s justice system, which usually moves at a more glacial pace, has acted swiftly. Partly because of that, in both trials, there were serious and similar flaws, so basic that it is difficult to be confident about the verdicts.

In Farkhunda’s case, in particular, there is a painful irony that those suspected of lynching someone, of carrying out a summary execution based on their belief in her guilt, should also have been subject to a sub-standard trial. As to those police who stood by and watched the murder, the Afghan legal system has again shown itself unable or unwilling to properly hold public servants to account.

 

(1) The judge split his sentencing of the policemen into four categories, according to crime and sentence:

Category 1

1 Hasibullah, Chief of Police, PD2

2 Saleh Muhammad, commander of Tolai (group of about 15-20 policemen), PD2

3 Sayed Taimor Shah, manager of operations and planning, PD2

4 Ghulam Nabi, member of ‘area control’, PD2

5 Shah Muhammad, Manager of Criminal Department, PD2

Found guilty of dereliction of duty, sentenced to one year imprisonment. Acquitted of not using their legal authority to stop the commission of a crime.

Judge cited Article 25 of the constitution, Article 4 of the Penal Code, 135 of the Criminal Procedure Code and Article 8 of the Mujalat ul-Ahkam (a book of Hanafi jurisprudence, a source in the Afghan legal code).

Category 2

1 Naz Muhammad, commander of Joi-ye Shir police check point.

2 Abdul Sami, commander of ‘block’ 3 of PD2 where shrine is located

3 Muhammad Moqim, member of ‘area control’, PD2

4 Abdul Sabur, commander block 2, PD2

5 Jawad, commander 020 police checkpoint

6 Zabihullah, commander of Afghan-Turk checkpoint

Found guilty of dereliction of duty according to Art 40 military crimes code, sentenced to one year imprisonment.

Judge said they could ask for appeal

Category 3

1 Sayed Ismail, administrative deputy of PD2.

2 Habib al-Rahman, commander of general directorate of human resources

3 Nur Agha, member of investigation (kashf) department, PD2.

Accused of dereliction of duty and not using their legal authority to stop a crime. Acquitted due to lack of evidence

Judge cited Art 25 constitution, Art 4 penal code, Art 135 criminal procedure code, Art 8 Mujalat ul-Ahkam

Category 4

1 Ahmad Zahir, policeman PD2.

2 Muhammad Halim, deputy commander of Tolai, PD2.

3 Abdul Wakil, policeman, PD2.

4 Iqbal, policeman at Afghan-Turk police checkpoint

5 Khwaja Kazem, policeman at Afghan-Turk police checkpoint

Accused of dereliction of duty and due to lack of evidence, acquitted as per articles above.

(2) The third type of consequence – and the most serious is when the military, police or NDS is ‘travelling’ (safar), possibly away from their usual duty station?

(3) Article 395 of the Penal Code stipulates:

The murderer should be sentenced to death if: the murder was pre-meditated; was committed using poison or materials making someone unconscious or explosive materials; was for payment; was very savage (wahshiana); if the murderer was a close relative; if the victim was an official on duty; if there was more than one murderer; if it was committed with another crime for which the sentence is more than five years in prison; if it was perpetrated in order to commit another crime; if the perpetrator has already been sentenced to more than 20 years in prison; if s/he  murdered more than one person.

(4) Article 22 of the Elimination of Violence against Women Law says (AAN translation):

1- If a person beats a woman considering the mitigating and aggravating circumstances, the offender in view of the circumstances shall be sentenced in accordance to Article 407 and 410 of the Penal Code; and

2- If the acts included in Paragraph 1 of this Article cause the death of the victim, the offender, in view of circumstances, shall be sentenced in accordance with Article 395 and 399 of the Penal Code.

The only relevant article here from the Penal Code is 395 on the death penalty (see footnote 4). Other articles refer to unintentional killing (manslaughter), premeditation and permanent damage, but not death of the victim.

(5) It is not clear why the judge cited Article 22 of the EVAW law for this sentencing. The article does looks at the beating of a woman (citing Articles 407 and 410 of the Penal Code) and beating of a woman to death (citing Articles 395 and 399 of the Penal Code). All these articles are either irrelevant to Farkhunda’s death (they discuss premeditation, the murder of a close relative and so on) or proscribe the death penalty or a sentence of less than the 16 years.

Moreover, the law is also unclear or contradictory: in Article 395, it says the murderer shall be sentenced to death if a long list of conditions apply (see footnote 4), including there being more than one murderer and if it was savage (as was the case in Farkhunda’s case); then in Article 396, it says, according to circumstances – if the murderer wanted to kill one person and only killed one person and there was not more than one murderer; if he did not mutilate the body and if (citing Article 395) the murder was not pre-meditated and was not committed using poison or materials making someone unconscious or explosive materials – the judge can give a lesser sentence of 16-20 years. In Farkhunda’s case, however, there was more than one murderer.

If you would like to plough through the relevant articles for yourself, please do (either AAN translation or summary):

Article 399 of the Penal Code:

1- If a person without having the purpose of killing, beats, injures, gives dangerous materials or does any other action against a second person and this action causes the murder of the victim, the perpetrator will be sentenced to Habs Tawil [no less than 5 years and no more than 15 years].

2- If the crimes mentioned in Paragraph 1 of this article were preplanned or against any officials while they were on duty, or the victim is a close relative, the perpetrator shall be sentenced to habs-e dawam [no less than 16 years and no more than 20 years].

Article 407 of the Penal Code:

1- If a person intentionally injures or beats another person, so causing wounding, breaking of bones or the disablement of part of the victim’s body, permanent disability or loss of a sense, as well as compensation, the perpetrator shall be sentence to habs-e mutawaset [no less than one not more than five years] that be no less than 3 years.

2- If the mentioned action [in Paragraph 1 of this article] is pre-mediated and causes mental disability, the perpetrator shall be sentenced to habs-e tawil [no less than five years and no more than 15 years] and it should not be more than ten years.

Article 410 of the Penal Code

If the victim is beaten or injured by more than one person, the highest punishment [ten years imprisonment] mentioned in the above articles, shall be given to each perpetrator.

Article 396 of the Penal Code:

The criminal shall be punished with habs-e dawam [no less than 16 and no more than 20 years] or death, according to the circumstances: if the murderer wanted to kill one person and only killed one person and there was not more than one murderer; if he did not mutilate the body and if the following circumstances do not hold [it cites Article 395 and the paragraphs on pre-meditation and murder by poison or materials making someone unconscious or explosive materials] he can be given a sentence of 16-20 years.

(6) Those acquitted of murder were:

1 Muhammad Hakim, son of Amanullah

2 Mahmud, son of Muhammad Faiz

3 Muhammad Zahir, son of Muhammad Sulaiman

4 Sherzai, son of Muhammad Anwar

5 Karamuddin, son of Muhammad Ikram

6 Hezbullah, son of Muhammad Kabir

7 Shafiq Ahmad, son of Rasul Ahmad

8 Eshaq, son of Gul Samad

9 Rabiullah, son of Mumtaz

10 Abdul Baqi, son of Malang

11 Jan Aqa, son of Abul Nazar

12 Hamid, son of Hameed Khan

13 Jan Aziz, son of Sher Aziz

14 Jawad, son of Ali Ahmad

15 Zahid Ahmad, son of Ghulam Hussain

16 Rais Khodaidad, son of Juma Khan

17 Ajmal, son of Muhammad Hashim

18 Ziarat Gul, son of Janat Gul

The judge cited Article 25 of constitutional law and Article 4 of criminal law in these acquittals.

(7) The judge quoted the wrong articles when he gave his verdicts on the police, citing 43 of the Military Criminal Code (about escaping from prison) instead of Article 40 (dereliction of duty) and Article 8 (handing in weapons if sentenced to jail) instead of Article 7 (habs-e tatili). The paperwork from the court that we have seen has similar errors.

(8) Based on Article 9, Paragraph 4 of the Criminal Procedure Code, any perpetrator who is accused of a crime for which the punishment is more than 5 years imprisonment must have a defence lawyer.

According to Article 279, Paragraph 2 of the same law the right to a defence lawyer is a fundamental part of any judicial process. Moreover, Paragraph 3 of the same article says if any fundamental part of a judiciary process is violated, the judge should cancel his or her verdict even this is not asked by none of the parties. Then all the process should start again based on the law.

The legal right to a defence lawyer is commonly violated in Afghanistan.

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Police death penalty Farkhunda rule of law trial

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