Scientific and Research Association of Judicial Jurisprudence
Afghanistan constitution PDF Print E-mail
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Thursday, 26 August 2010 07:25


In the name of God, the Merciful, the Compassionate, We the people of Afghanistan:
With firm faith in God Almighty and relying on His mercy, and Believing in the Sacred religion of Islam,

Observing the United Nations Charter and respecting the Universal Declaration of Human Rights,

Realizing the injustice and shortcoming of the past, and the numerous troubles imposed on our country,

acknowledging the sacrifices and the historic struggles, rightful Jehad
and resistance of the Nation, and respecting the high position of the
martyrs for the freedom of Afghanistan,

Understanding the fact that Afghanistan is a single and united country and belongs to all ethnicity residing in this country,

For consolidating, national unity, safeguarding independence, national sovereignty, and territorial integrity of the country,

For establishing a government based on people's will and democracy,

creation of a civil society free of oppression, atrocity,
discrimination, and violence, based on rule of law, social justice,
protection of human rights, and dignity, and ensuring fundamental
rights and freedoms of the people,

For strengthening of political, social, economic, and defensive institutions of the country,

For ensuring a prosperous life, and sound environment for all those residing in this land,

And finally for regaining Afghanistan's deserving place in the international community,
adopted this constitution in compliance with historical, cultural, and
social requirements of the era, through our elected representatives in
the Loya Jirga dated / /1382 in the city of Kabul.

Chapter One The State

Article 1
Afghanistan is an Islamic Republic, independent, unitary and indivisible state.

Article 2
The religion of Afghanistan is the sacred religion of Islam.
Followers of other religions are free to perform their religious ceremonies within the limits of the provisions of law.

Article 3
In Afghanistan, no law can be contrary to the sacred religion of Islam and the values of this Constitution.

Article 4
National sovereignty in Afghanistan belongs to the nation that exercises it directly or through its representatives.
The nation of Afghanistan consists of all individuals who are the citizen of Afghanistan.
The word Afghan applies to every citizen of Afghanistan.
None of the citizens of the nation shall be deprived of his Afghan citizenship.
Affairs related to the citizenship and asylum are regulated by law.

Last Updated on Thursday, 26 August 2010 21:25
Classification of crimes PDF Print E-mail
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Thursday, 26 August 2010 07:23

Classification of crimes

S. B. Mohammadi

In an ancient definition, according to gravity of the offence, crimes were categorized to three groups:  felonies, misdemeanors and petty offences. In the US criminal law, the felonies include very serious crimes, but in federal law, any crime for which the penalty is death or Imprisonment for more than 1 year is called felony. The misdemeanors are described as less serious crimes, for which the penalty is imprisonment for less than a year. Finally, the petty offences are summery offences that commonly come within the jurisdiction of a magistrate. In spite of this ancient categorization, the modern classifications tend to recommend the subject of crime as a criterion for classification. According to types of crime subjects, offences are classified in three major classes: offences against property, offences against the person and offences against security of the state and public tranquility.

Offences against property as a category of crimes, itself come in various forms and include many crimes like theft, robbery, burglary etc. Theft is determined as “dishonestly appropriating a property that belongs to another with the intention of permanently depriving that other of it.”[1] On the other hand, Robbery consists of two elements, stealing a property and using force in this unlawful act. Burglary also is a compound concept; for this a person is guilty of burglary if he enters any building as a trespasser with intent to steal, and commits another grievous crime.[2]            

Offences against the person include two major groups: fatal offences and non-fatal offences. Homicide, infanticide, and abortion are of the fatal offences. The homicide is divided into two type of unlawful killing: murder and manslaughter (that include voluntary manslaughter and involuntary manslaughter). Three elements are necessary to a murder be happened: unlawful killing, causation and malice aforethought. On the other hand, non-fatal offences comprise rape, assault and battery, motoring offences…

The third group itself is divided into two kinds: offences against security of the state and offences against public tranquility. The first includes crimes like spying (i.e. to collect secret information about another country, organization or person), and Treason (i.e. the crime of doing some thing that could cause danger to your country, such as helping enemies during a war). The second involves offences like forgery (i.e. the crime of copying money, documents, etc. in order to cheat people) and counterfeit (i.e. made to look exactly like money in order to trick people into thinking that they are getting the real money).

There is no way to prefer one of these classifications, unless increasing crime rates demand modern classification to include modern crimes. Beside this because of incredible technology developing, crimes become more complicated so their classification becomes harder day by day. 

[1] "General principles of English law", by P.W.D. Redmond, 5th ed, 1983, Macdonald and Evans publication, pp. 331-365.

[2] Like rape, grievous bodily harm and etc.

Last Updated on Thursday, 26 August 2010 07:24
Not reported crimes PDF Print E-mail
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Thursday, 26 August 2010 07:22

Not reported crimes
S. B. Mohammadi
In every country, many studies take place to discover real amounts of crimes. They have indicated obvious differences between official figures and figures that have shown by these studies. For instance, home office British 2000 survey uncovered almost 15 million offences, three times the official figures of 5.3 million. In addition, rates of reporting varied widely between different types of crimes. This fact raises an important question "What influences the decision to report?" Three elements may influence reporting crimes: importance of offence, kind of offence and victim's characteristics.
According to the British crime survey, the main reason for not reporting is that the victim saw the offences as trivial, and believed that the police would not be able to do any thing about it. In our every day life, many crimes maybe committed by others or even by us that we prefer not to report it. In these situations, compromise is the best choice.
The second factor that may influence the reporting crimes rate is offences' type. Some crimes are not reported because they regarded as personal matters like domestic violence. Some other crimes may be so embarrassing in the society point of view, that the victims may be too embarrassed to report to police, especially where the offence is of a ... nature. People also tend to report crimes where there is an obvious advantage to them in doing so. For example, In England, car thefts are reported more than many crimes, presumably because that is necessary in order to make an insurance claim.    
Another reason that some crimes are not reported is referred to victim's characteristics. Some people have little faith in the police or fear reprisals from criminal and believe the police will not be able to protect them. In addition, the literacy and culture level of victims could have undeniable effects on reporting crimes. So poor district are best places for offenders to commit crimes and be safe of police prosecution.
These elements make official statistics weak and unreliable. Therefore, other ways (in addition to official statistics and crime surveys) are necessary to find real crime rates.        

Last Updated on Thursday, 26 August 2010 21:26
Steps of criminal trial PDF Print E-mail
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Thursday, 26 August 2010 07:21

Steps of criminal trial
S. B. Mohammadi

According to nature of action, two different kinds of procedure law are used in courts: civil and criminal procedure law. A definite distinction made between criminal and civil proceedings is innocent presumption in criminal cases. That means in criminal trail accused person is presumed innocent unless his guilt is proved by evidence. In spite of this fact, a criminal system can be imagined as a machine that its input is crime and its output is punishment. This machine works in significant process called steps of criminal trial. Detection, prosecution, trial and execution are steps of this process.
Detection: To start a criminal trial, at first a crime should be discovered by police or reported by other peoples. The statistics related to discovered crimes, only show few amounts of committed crimes and real committed crime are several times more than statistics. Anyhow, the police should record discovered crimes and for beginning second step refer the case to the inspector.
Prosecution: This step starts with investigating from defendants, plaintiffs and witnesses. The inspector writes their claims and records them. He tries to find convincing evidences, and consequently offender. The inspector writes his investigations and his view about conviction of defendant. If he determine defendant as a convicted will refer the case to the Public Prosecutor to plead suit against defendant in court.
Trial: In the Western criminal system, in relation to the more serious offences at least, a criminal case will involve a judge and jury, while in the Islamic criminal system it involves only a judge. He makes decision about defendant conviction and pronounces a judgment. Of course, it is not the end of trial and convicted can ask for revision from higher courts, like the Supreme Court in murder cases.
Execution: A sentence is referred to the executing officer if confirmed after revision, and it is the end of criminal case: punishment.
This order is observed in most criminal systems with a few distinctions. Finally, I wish the crimes decreased day by day, though the crime is unavoidable element of every society,

The criminalized conducts PDF Print E-mail
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Thursday, 26 August 2010 07:21

The criminalized conducts
S. B. Mohammadi

Every society protects its important values by passing punishment against who disregard these values and commit a crime. In fact, the importance of a value determines grievousness of a crime and seriousness of its punishment. Although, some values have such importance, that their ignorance criminalized invariably in every society and every condition, some of them are not so important. For example, rape is a crime in every society, in every place and every time, while criminalization of some conducts varies in different conditions. In this case, place, time, culture can affect regarding a conduct as a crime.
Culture can affect criminalization of a conduct. Some values in one culture have not the same importance as other cultures. Therefore, one act may be a crime in one society, while in other society this act is lawful. For example, according to Islamic culture, homosexuality is crime, whereas in the Western criminal law is not a crime.
The second factor that brings about differences in criminalization is time. As general attitudes change over time, so do attitudes to kinds of behavior we libel as criminal.  For instance, once, having a video player was a crime while it is not a crime now. On the other hand, having a weapon was not a crime, but now it is.
Finally, different places demand different conduct as criminal acts. Many behaviors labeled as criminal in one place but not in other. Smoking cannabis, breaking copyright and abortion are of these kinds of crimes.
Although some conduct which threat superior values, like rape, burglary, murder… are absolute crime in every society, most of them are not so, and vary from place to place, time to time and culture to culture. Consequently, time, place and culture can affect the criminalization process.       

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