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Quest for trial transcripts

We had a case, the rape of a 12 year-old girl. After trial, Chief of EVAW Court handed down an acquittal which surprised us given the damning evidence against the Defendant. To prepare our appeal, we orally submitted our request for trial minutes (containing our cross-examination). The notes of our cross-examination were essential as we had successfully discredited the Defendant’s testimony on cross. We proved that he lied on a material point. The Court however, issued us skeletal trial minutes without any reference to our cross-examination, whatsoever. We submitted a Petition in writing this time, to request for the full trial minutes. The Chief Justice of EVAW Court rejected our Petition stating: “It is not our duty to note your cross-examination. We only note exchanges between the Court and litigants.” To that, we re-submitted a second petition in writing, drawing from the provisions of the Criminal Procedure Code:

“If the objection to our Petition is that the law is unclear as to the scope of the Court’s duties to record, then we would humbly suggest that the matter be referred to the Supreme Court for interpretive guidance.”

The Chief Justice of the EVAW Court was jolted by our bold and unexpected suggestion. After some objection and negotiation as to the language of our petition, the Chief Justice of EVAW Court agreed to issue us the trial minutes with our cross-examination on condition that we completely remove our request to refer the matter to Supreme Court. We won as a result of both legal argument and strategy, guided by the sole objective of holding the Court accountable.

Of note:

- The minutes of cross-examination was included in the file, a week later.

- The file with our cross-ex minutes was filed with the Appeals Court.

- Just a week ago, the Appeals Court accepted our request to send the file back for further investigations.

This is a classic case of the importance of holding the Judiciary accountable and accountability directly impacts on client’s rights and prospects of obtaining justice. To the best of our knowledge, this is the first of such cases before the EVAW Court.

2. In addition to the above case, we have filed several objections to the Court and Prosecution for State failure to respect client’s request for simultaneous claim for compensation.

3. We have also started filing petitions for disclosure of documents. Non-disclosure has severely impeded our work. In our most recent application for disclosure of documents in September 2017, the Court Prosecutor in Kabul jokingly remarked to our lawyer, “I know you are very good at writing petitions” after a series written petitions we had bombarded the Court with that month.

In October 2017, we filed a petition to the Chief of EVAW Department for the utter lack of cooperation and misbehaviour of a prosecutor against one of our lawyers. The Petition was endorsed by the EVAW Department and the Prosecutor was reprimanded by the Chief of EVAW Department.



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