There were several reports that the government or its agents committed arbitrary or unlawful killings. From January 1 to September 30, UNAMA reported an overall increase in civilian deaths over the same period for 2017, from 2,666 to 2,798. The number of civilian deaths attributed to progovernment forces increased from 560 to 761. The total number of civilian casualties decreased from 8,084 to 8,050.

According to the annual report UNAMA released in February, Afghan Local Police (ALP) in Zurmat District, Paktiya Province, killed a civilian and injured two others during an attempted home invasion and robbery in September 2017. Although the government investigated and prosecuted some cases of extrajudicial killing, an overall lack of accountability for security force abuses remained a problem, particularly with the ALP.

There were numerous reports of politically motivated killings or injuries by the Taliban, ISIS-K, and other insurgent groups. UNAMA reported 1,743 civilian deaths due to antigovernment and terrorist forces in the first nine months of the year. These groups caused 65 percent of total civilian casualties, compared with 64 percent in 2017. On August 15, ISIS-K killed 48 individuals and injured 67 in a bombing that targeted students in a Kabul classroom.

There were reports of disappearances committed by security forces and antigovernment forces alike.

UNAMA, in its biannual Report on the Treatment of Conflict-Related Detainees, reported multiple allegations of disappearances by the ANP in Kandahar.

Two professors, working for the American University of Afghanistan and kidnapped by the Taliban in 2016 in Kabul, remained in captivity.

Although the constitution and law prohibit such practices, there were numerous reports that government officials, security forces, detention center authorities, and police committed abuses.

NGOs reported security forces continued to use excessive force, including torturing and beating civilians. On April 17, the government approved the UN Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, building on the prior year’s progress in passing the Antitorture Law. Independent monitors, however, continued to report credible cases of torture in detention centers.

UNAMA, in its April 2017 Report on the Treatment of Conflict-Related Detainees, stated that of the 469 National Directorate for Security (NDS), ANP, and Afghan National Defense and Security Forces (ANDSF) detainees interviewed, 39 percent reported torture or other abuse. Types of abuse included severe beatings, electric shocks, prolonged suspension by the arms, suffocation, wrenching of testicles, burns by cigarette lighters, sleep deprivation, sexual assault, and threats of execution.

The Afghanistan Independent Human Rights Commission (AIHRC) stated in its June report on the use of torture in detention centers that of the 621 detainees they interviewed, 79 persons, or 12 percent, reported being tortured, for the purpose of both eliciting confessions as well as punishment. The AIHRC reported that of these 79 cases, the ANP perpetrated 62 cases, with the balance by the NDS and ANDSF.

In November 2016, first vice president General Abdul Rashid Dostum allegedly kidnapped Uzbek tribal elder and political rival Ahmad Ishchi. Before detaining Ishchi, Dostum let his bodyguards brutally beat him. After several days in detention, Ishchi alleged he was beaten, tortured, and raped by Dostum and his men. Dostum returned in July and resumed his duties as first vice president after more than a year in Turkey. As of August there was no progress on the case brought by Ishchi.

There were numerous reports of torture and cruel, inhuman, and degrading punishment by the Taliban, ISIS-K, and other antigovernment groups. The AIHRC and other organizations reported summary convictions by Taliban courts that resulted in executions by stoning or beheading. According to media reports, Taliban in Kohistan District, Sar-e Pul Province, stoned a man to death in February on suspicion of zina (extramarital sex). There were other reports of ISIS-K atrocities, including the beheading of a 12-year-old child in Darzab District, Jowzjan Province, in April, the beheading of three medical workers in Chaparhar District, Nangarhar Province, in April, and stoning of a man in Nangarhar in February.

Prison and Detention Center Conditions

Prison conditions were difficult due to overcrowding, unsanitary conditions, and limited access to medical services. The General Directorate of Prisons and Detention Centers (GDPDC), part of the Ministry of Interior, has responsibility for all civilian-run prisons (for both men and women) and civilian detention centers, including the large national prison complex at Pul-e Charkhi. The Ministry of Justice’s Juvenile Rehabilitation Directorate is responsible for all juvenile rehabilitation centers. The NDS operates short-term detention facilities at the provincial and district levels, usually collocated with their headquarters facilities. The Ministry of Defense runs the Afghan National Detention Facilities at Parwan. There were credible reports of private prisons run by members of the ANDSF and used for abuse of detainees. The Taliban also maintain illegal detention facilities throughout the country. The ANDSF discovered and liberated several Taliban detention facilities during the year and reported that prisoners included children and Afghans accused of moral crimes or association with the government.

Physical Conditions: Overcrowding in prisons continued to be a serious, widespread problem. Based on standards recommended by the International Committee of the Red Cross (ICRC), 28 of 34 provincial prisons for men were severely overcrowded. The country’s largest prison, Pul-e Charkhi, held 13,118 prisoners, detainees, and children of incarcerated mothers as of October, 55 percent more than it was designed to hold. In August more than 500 prisoners at Pul-e Charkhi participated in a one-week hunger strike to protest prison conditions, particularly for elderly and ill inmates, and the administration of their cases.

Authorities generally lacked the facilities to separate pretrial and convicted inmates or to separate juveniles according to the seriousness of the charges against them. Local prisons and detention centers did not always have separate facilities for female prisoners.

According to NGOs and media reports, children younger than age 15 were imprisoned with their mothers, due in part to a lack of capacity among Children’s Support Centers. These reports documented insufficient educational and medical facilities for these minors.

Access to food, potable water, sanitation, heating, ventilation, lighting, and medical care in prisons varied throughout the country and was generally inadequate. The GDPDC’s nationwide program to feed prisoners faced a severely limited budget, and many prisoners relied on family members to provide food supplements and other necessary items. In November 2017 the local NGO Integrity Watch Afghanistan reported that Wardak Prison had no guaranteed source of clean drinking water and that prisoners in Pul-e Charkhi, Baghlan, and Wardak had limited access to food, with prisoners’ families also providing food to make up the gap.

Administration: The law provides prisoners with the right to leave prison for up to 20 days for family visits. Most prisons did not implement this provision, and the law is unclear in its application to different classes of prisoners.

Independent Monitoring: The AIHRC, UNAMA, and the ICRC monitored the NDS, Ministry of Interior, Ministry of Justice, and Ministry of Defense detention facilities. NATO Mission Resolute Support monitored the NDS, ANP, and Defense Ministry facilities. Security constraints and obstruction by authorities occasionally prevented visits to some places of detention. UNAMA and the AIHRC reported difficulty accessing NDS places of detention when they arrived unannounced. The AIHRC reported NDS officials usually required the AIHRC to submit a formal letter requesting access at least one to two days in advance of a visit. NDS officials continued to prohibit AIHRC and UNAMA monitors from bringing cameras, mobile phones, recording devices, or computers into NDS facilities, thereby preventing AIHRC monitors from properly documenting physical evidence of abuse, such as bruises, scars, and other injuries. The NDS assigned a colonel to monitor human rights conditions in its facilities.

d. Arbitrary Arrest or Detention

The law prohibits arbitrary arrest and detention, but both remained serious problems. Authorities detained many citizens without respecting essential procedural protections. According to NGOs, law enforcement officers continued to detain citizens arbitrarily without clear legal authority or due process. Local law enforcement officials reportedly detained persons illegally on charges not provided under local criminal law. In some cases authorities improperly imprisoned women because they deemed it unsafe for the women to return home or because women’s shelters were not available to provide protection in the provinces or districts at issue (see section 6, Women). The law provides a defendant the right to object to his or her pretrial detention and receive a court hearing on the matter, but authorities generally did not observe this requirement.

ROLE OF THE POLICE AND SECURITY APPARATUS

Three ministries have responsibility for law enforcement and maintenance of order in the country: the Ministry of Interior, the Ministry of Defense, and the NDS. The ANP, under the Ministry of Interior, has primary responsibility for internal order and for the Afghan Local Police (ALP), a community-based self-defense force. The Major Crimes Task Force (MCTF), also under the Ministry of Interior, investigates major crimes including government corruption, human trafficking, and criminal organizations. The Afghan National Army, under the Ministry of Defense, is responsible for external security, but its primary activity is fighting the insurgency internally. The NDS functions as an intelligence agency and has responsibility for investigating criminal cases concerning national security. The investigative branch of the NDS operated a facility in Kabul, where it held national security prisoners awaiting trial until their cases went to prosecution. Some areas were outside of government control, and antigovernment forces, including the Taliban, oversaw their own justice and security systems.

There were reports of impunity and lack of accountability by security forces throughout the year. According to observers, ALP and ANP personnel were largely unaware of their responsibilities and defendants’ rights under the law. Accountability of the NDS, ANP, and ALP officials for torture and abuse was weak, not transparent, and rarely enforced. Independent judicial or external oversight of the NDS, MCTF, ANP, and ALP in the investigation and prosecution of crimes or misconduct, including torture and abuse, was limited or nonexistent.

ARREST PROCEDURES AND TREATMENT OF DETAINEES

UNAMA, the AIHRC, and other observers reported arbitrary and prolonged detention frequently occurred throughout the country. Authorities often did not inform detainees of the charges against them.

The new Penal Code, which took effect in February, modernizes and consolidates criminal laws incorporating new provisions, including the introduction of alternatives to incarceration for adults. Understanding and knowledge of the new code among justice-sector actors and the public was not widespread, but a UNAMA “Survey and Preliminary Findings on Implementation of the 2017 Penal Code (RPC) in Afghanistan”, conducted between April and July, found that courts generally were applying the new Penal Code and were aware of when it should be applied.

Existing law provides for access to legal counsel and the use of warrants, and it limits how long authorities may hold detainees without charge. Police have the right to detain a suspect for 72 hours to complete a preliminary investigation. If police decide to pursue a case, they transfer the file to the Attorney General’s Office. After taking custody of a suspect, the Attorney General’s Office can issue a detention warrant for up to seven days for a misdemeanor and 15 days for a felony. With court approval, the investigating prosecutor may continue to detain a suspect while continuing the investigation, with the length of continued detention depending on the severity of the offense. The investigating prosecutor may detain a suspect for a maximum of 10 days for a petty crime, 27 days for a misdemeanor, and 75 days for a felony. The prosecutor must file an indictment or release the suspect within those deadlines; there can be no further extension of the investigatory period if the defendant is already in detention. Prosecutors often ignored these limits. In addition there were multiple reports that judges often detained prisoners after sentences were completed because a bribe for release had not been paid. Incommunicado imprisonment remained a problem, and prompt access to a lawyer was rare. Prisoners generally were able to receive family visits.

The criminal procedure code, although rarely used, provides for release on bail. Authorities at times remanded “flight risk” defendants pending a prosecutorial appeal despite the defendants’ acquittal by the trial court. In other cases authorities did not rearrest defendants released pending appeal, even after the appellate court convicted them in absentia.

According to international monitors, prosecutors filed indictments in cases transferred to them by police, even where there was a reasonable belief no crime occurred.

According to the juvenile code, the arrest of a child “should be a matter of last resort and should last for the shortest possible period.” Reports indicated children in juvenile rehabilitation centers across the country lacked access to adequate food, health care, and education. Detained children frequently did not receive the presumption of innocence, the right to know the charges against them, access to defense lawyers, and protection from self-incrimination. The law provides for the creation of special juvenile police, prosecution offices, and courts. Due to limited resources, special juvenile courts functioned in only six provinces (Kabul, Herat, Balkh, Kandahar, Nangarhar, and Kunduz). Elsewhere, children’s cases went to ordinary courts. The law mandates authorities handle children’s cases confidentially.

Some children in the criminal justice system were victims rather than perpetrators of crime. In the absence of sufficient shelters for boys, authorities detained abused boys and placed them in juvenile rehabilitation centers because they could not return to their families and shelter elsewhere was unavailable.

Police and legal officials often charged women with intent to commit zina (sex outside marriage) to justify their arrest and incarceration for social offenses, such as running away from their husband or family, rejecting a spouse chosen by their families, and fleeing domestic violence or rape, or eloping to escape an arranged marriage. The constitution provides that in cases not explicitly covered by the provisions of the constitution or other laws, courts may, in accordance with Hanafi jurisprudence (a school of Islamic law) and within the limits set by the constitution, rule in a manner that best attains justice in the case. Although observers stated this provision was widely understood to apply only to civil cases, many judges and prosecutors applied this provision to criminal matters. Observers reported officials used this article to charge women and men with “immorality” or “running away from home”, neither of which is a crime. Police often detained women for zina at the request of family members.

Authorities imprisoned some women for reporting crimes perpetrated against them and detained some as proxies for a husband or male relative convicted of a crime on the assumption the suspect would turn himself in to free the family member.

Authorities placed some women in protective custody to prevent violence by family members. They also employed protective custody (including placement in a detention center) for women who had experienced domestic violence, if no shelters were available to protect them from further abuse. The 2009 Elimination of Violence Against Women (EVAW) presidential decree–commonly referred to as the EVAW law–obliges police to arrest persons who abuse women. Implementation and awareness of the EVAW law was limited, however. In March, President Ghani issued a decree amending the new Penal Code to reinforce EVAW as a stand-alone law.

Arbitrary Arrest: Arbitrary arrest and detention remained a problem in most provinces. Observers reported some prosecutors and police detained individuals without charge for actions that were not crimes under the law, in part because the judicial system was inadequate to process detainees in a timely fashion. Observers continued to report those detained for moral crimes were primarily women.

Pretrial Detention: The law provides a defendant the right to object to his or her pretrial detention and receive a court hearing on the matter. Nevertheless, lengthy pretrial detention remained a problem. Many detainees did not benefit from the provisions of the criminal procedure code because of a lack of resources, limited numbers of defense attorneys, unskilled legal practitioners, and corruption. The law provides that, if there is no completed investigation or filed indictment within the code’s 10-, 27-, or 75-day deadlines, judges must release defendants. Judges, however, held many detainees beyond those periods, despite the lack of an indictment.

Amnesty: In January the government released 75 Hezb-e Islami Gulbuddin (HIG) political detainees as follow-up to a September 2016 peace accord with the HIG that included amnesty for past war crimes for HIG members including its leader, Gulbuddin Hekmatyar.

The law provides for an independent judiciary, but the judiciary continued to be underfunded, understaffed, inadequately trained, largely ineffective, and subject to threats, bias, political influence, and pervasive corruption.

Judicial officials, prosecutors, and defense attorneys were often intimidated or corrupt. In May, UNAMA reported that the Anticorruption Justice Center, established in 2016 to combat corruption, has thus far indicted 142 cases, including charges of misuse of authority, embezzlement, bribery, forgery of documents, and money laundering. Bribery and pressure from public officials, tribal leaders, families of accused persons, and individuals associated with the insurgency impaired judicial impartiality. Most courts administered justice unevenly, employing a mixture of codified law, sharia, and local custom. Traditional justice mechanisms remained the main recourse for many, especially in rural areas. Corruption was common within the judiciary, and criminals often paid bribes to obtain their release or a sentence reduction (see section 4).

There was a widespread shortage of judges, primarily in insecure areas, leading to the adjudication of many cases through informal, traditional mediation. A shortage of women judges, particularly outside of Kabul, limited access to justice for women. Many women cannot and do not use the formal justice system because cultural norms preclude their engagement with male officials. Only 234 of 2162, or 12 percent, of judges are women. The formal justice system was stronger in urban centers, closer to the central government, and weaker in rural areas. Courts and police forces continued to operate at less than full strength nationwide. The judicial system continued to lack the capacity to absorb and implement the large volume of new and amended legislation. A lack of qualified judicial personnel hindered the courts. Some municipal and provincial authorities, including judges, had minimal training and often based their judgments on their personal understanding of sharia without appropriate reference to statutory law, tribal codes of honor, or local custom. The number of judges who graduated from law school continued to increase. Access to legal codes and statutes increased, but their limited availability continued to hinder some judges and prosecutors. UNAMA found during an April to July survey that judges did not have sufficient copies of the new Penal Code.

During the year an investigatory committee, formed by President Ghani in 2016, closed its inquiry into the Farkhunda case, which involved the 2015 death of a woman killed by a mob. The committee report described deficiencies in responses by the police, prosecutors, and the courts. The investigation was closed during the year without further action.

In major cities courts continued to decide criminal cases as mandated by law. Authorities frequently resolved civil cases using the informal system, the government mediation mechanism through the Ministry of Justice Huquq office, or, in some cases, through negotiations between the parties facilitated by judicial personnel or private lawyers. Because the formal legal system often was not present in rural areas, local elders and shuras (consultative gatherings, usually of men selected by the community) were the primary means of settling both criminal matters and civil disputes. They also imposed punishments without regard to the formal legal system. UNAMA and NGOs reported several cases where perpetrators of violence against women crimes that included domestic abuse reoffended after their claims were resolved by mediation. For example, UNAMA cited a case where a Taliban court’s mediation sent a victim of spousal abuse back to her home, only for her husband to cut off her nose afterwards.

In some areas the Taliban enforced a parallel judicial system based on a strict interpretation of sharia. Punishments included execution and mutilation. According to media reporting, in February a Taliban court in Obe District, Herat Province, cut off a man’s hand and leg as a sentence for robbery.

TRIAL PROCEDURES

The constitution provides the right to a fair and public trial, but the judiciary rarely enforced this provision. The administration and implementation of justice varied in different areas of the country. The government formally uses an inquisitorial legal system. By law all citizens are entitled to a presumption of innocence, and those accused have the right to be present at trial and to appeal, although the judiciary did not always respect these rights. Some provinces held public trials, but this was not the norm. The law requires judges to provide five days’ notice prior to a hearing, but this requirement was not always followed.

Three-judge panels decide criminal trials, and there is no right to a jury trial under the constitution. Prosecutors rarely informed defendants promptly or in detail of the charges brought against them. Indigent defendants have the right to consult with an advocate or counsel at public expense when resources allow. The judiciary applied this right inconsistently, in large part due to a severe shortage of defense lawyers. Citizens were often unaware of their constitutional rights. Defendants and attorneys are entitled to examine physical evidence and documents related to a case before trial, although observers noted court documents often were not available for review before cases went to trial, despite defense lawyers’ requests.

Criminal defense attorneys reported the judiciary’s increased respect and tolerance for the role of defense lawyers in criminal trials, but defendants’ attorneys continued to experience abuse and threats from prosecutors and other law enforcement officials.

The criminal procedure code establishes time limits for the completion of each stage of a criminal case, from investigation through final appeal, when the accused is in custody. The code also permits temporary release of the accused on bail, but this was rarely honored. An addendum to the code provides for extended custodial limits in cases involving crimes committed against the internal and external security of the country. Courts at the Justice Center in Parwan regularly elected to utilize the extended time periods. If the judiciary does not meet the deadlines, the law requires the accused be released from custody. Often courts did not meet these deadlines, but detainees nevertheless remained in custody.

In cases where no clearly defined legal statute applied, or where judges, prosecutors, or elders were unaware of the statutory law, judges and informal shuras enforced customary law. This practice often resulted in outcomes that discriminated against women.

POLITICAL PRISONERS AND DETAINEES

There were no reports the government held political prisoners or detainees.

CIVIL JUDICIAL PROCEDURES AND REMEDIES

Corruption and limited capacity restricted citizen access to justice for constitutional and human rights violations. Citizens submit complaints of human rights violations to the AIHRC, which reviews and submits credible complaints to the Attorney General’s Office for further investigation and prosecution.

The law prohibits arbitrary interference in matters of privacy, but authorities did not always respect its provisions. The criminal procedure code contains additional safeguards for the privacy of the home, prohibiting night arrests, requiring the presence of a female officer during residential searches, and strengthening requirements for body searches. The government did not always respect these prohibitions.

Government officials continued to enter homes and businesses of civilians forcibly and without legal authorization. There were reports that government officials monitored private communications, including telephone calls and other digital communications, without legal authority or judicial warrant.

Media and the government reported that the Taliban routinely used civilian homes as shelters and bases of operation, including in their attacks on Farah in May and Ghazni in August. There were also reports that the Taliban and ISIS-K used schools for military purposes.

Continuing internal conflict resulted in civilian deaths, abductions, prisoner abuse, property damage, displacement of residents, and other abuses. The security situation remained a problem due to insurgent attacks. Terrorist groups caused the vast majority of civilian deaths.

Killings: During the first nine months of the year, UNAMA counted 2,798 civilian deaths due to conflict, an increase of 5 percent from the same period in 2017. UNAMA noted an increase in indiscriminate suicide attacks by antigovernment forces, particularly in Nangarhar Province, where civilian casualties more than doubled compared with the same period in 2017. UNAMA attributed 65 percent of civilian casualties to antigovernment forces, including the Taliban and ISIS, and 22 percent to progovernment forces. UNAMA documented 649 civilian casualties from airstrikes in the first nine months of the year, a 39 percent increase over the same period in 2017. The AIHRC, in its annual report of civilian casualties, reported 3,239 civilians killed from March 2017 to March 2018, a 15 percent increase over the prior year. The AIHRC attributed 65 percent of civilian casualties to antigovernment forces.

On April 2, Afghan Air Force helicopters struck a madrassa in Dasht-e Archi District, Kunduz Province, in an operation targeting Taliban forces. The strike caused at least 107 casualties, according to UNAMA, including 81 children.

UNAMA documented an increase in attacks by antigovernment forces against religious leaders, recording 27 targeted killings in 2016 and 2017, most of which were attributed to the Taliban. On August 3, ISIS-K targeted a Shia mosque in Gardez, Paktia Province, in a suicide bombing that killed 39 civilians during Friday prayers.

Antigovernment elements also continued to attack religious leaders who spoke against the Taliban. On March 7, a suicide bombing killed Mullah Abdul Zahir Haqani, the Ministry of Hajj and Religious Affairs director for Nangarhar Province. On June 4, ISIS-K targeted a gathering of religious scholars in Kabul with a suicide bombing, killing 14 after the scholars issued a religious declaration condemning suicide attacks, and a bomb attack on another religious gathering killed at least 55 persons on November 20.

During the year antigovernment groups continued to perpetrate complex suicide attacks targeting civilians. On September 11, a suicide attack targeting a protest in Nangarhar Province killed approximately 68 and wounded 165. On January 27, the Taliban killed more than 100 individuals in Kabul with a vehicle-borne IED hidden in an ambulance. On January 20, the Taliban attacked the Inter-Continental Hotel in Kabul, killing 42, including 17 foreign nationals.

Antigovernment elements also continued to target government officials and entities, as well as political candidates, throughout the country. On July 31, attackers assaulted the offices of the Ministry of Refugees and Repatriation in Jalalabad, Nangarhar Province, killing at least 15. On April 12, the governor of Khawaja Omari District, Ghazni Province, was killed when the Taliban attacked the district headquarters, leaving more than 12 dead.

Abductions: UNAMA documented 255 cases of conflict-related abductions involving 1,005 abducted civilians in 2017, of which 215 cases were attributed to the Taliban. In June the Taliban abducted 44 construction workers in Kandahar Province, eventually releasing them in August after mediation by local elders.

Physical Abuse, Punishment, and Torture: An April 2017 report by UNAMA documented the highest levels of torture of conflict-related detainees in police custody since 2010. According to the report, the Kandahar police tortured 91 percent of detainees by forcibly pumping water into their stomachs, crushing their testicles with clamps, suffocating them to the point of losing consciousness, or applying electric current to their genitals. In July Afghan security forces arrested Nizamuddin Qaisari, a local militia commander and district police chief. A widely released video showed the arresting forces beating Qaisari’s restrained security detail, leading to several days of protests.

Antigovernment elements continued to punish civilians. In August 2017 Taliban and ISIS-K members killed approximately 36 individuals, including civilians, at Mirza Olang village, Sayyad District, Sar-e Pul Province, accusing them of supporting the government. Shortly after voting in the October parliamentary elections, Taliban combatants kidnapped an individual and cut off the finger he had dipped in ink following voting, a common practice after voting to prevent duplicate voting.

Antigovernment groups regularly targeted civilians, including using indiscriminate IEDs to kill and maim them. Land mines, unexploded ordnance, and explosive remnants of war (ERW) continued to cause deaths and injuries. The ANP reported that unexploded ordnance (UXO) killed 140 individuals per month. Media regularly reported cases of children killed and injured after finding UXO. The Ministry of Education and NGOs continued to conduct educational programs and mine awareness campaigns throughout the country. The UN High Commissioner for Refugees and the International Organization for Migration provided mine-risk education for refugees and undocumented returnees.

In 2017 civilian casualties from ERW decreased by 12 percent compared with 2016. Child casualties accounted for 81 percent of all civilian casualties caused by ERW in 2017. ERW caused 518 child casualties (142 deaths and 376 injured). Overall in 2017, UNAMA documented 639 civilian casualties (164 deaths and 475 injuries) from ERW.

Child Soldiers: There were reports the ANDSF, particularly the ANP and ALP, and progovernment militias recruited children. The AIHRC reported that government security forces in Kandahar Province used child recruits. UNAMA verified or documented credible allegations of the recruitment and use of six boys by security forces during the first six months of the year. The government expanded child protection units to all 34 provinces; however, some NGOs reported these units were not sufficiently equipped, staffed, or trained to provide adequate oversight.

Under a government action plan, the ANP took steps that included training staff on age-assessment procedures, launching an awareness campaign on underage recruitment, investigating alleged cases of underage recruitment, and establishing centers in some provincial recruitment centers to document cases of attempted child enlistment. Recruits underwent an identity check, including an affidavit from at least two community elders that the recruit was at least 18 years old and eligible to join the ANDSF. The Ministries of Interior and Defense also issued directives meant to prevent the recruitment and sexual abuse of children by the ANDSF. Media reported that in some cases ANDSF units used children as personal servants, support staff, or for sexual purposes.

According to UNAMA, the Taliban and ISIS-K continued to use children for front-line fighting and setting IEDs. On August 1, an ISIS-K group numbering more than 200 surrendered to the government in Jowzjan Province. According to some reports, the group included several dozen children, including at least four younger than age 12, many of whom were child combatants. While the law protects trafficking victims from prosecution for crimes committed as a result of being subjected to trafficking, it was unclear if the government would treat the child ex-combatants as trafficking victims or penalize them as combatants.

UNAMA verified or documented credible allegations of the recruitment of 23 boys by antigovernment elements in the first six months of the year (17 by Tehrik-i-Taliban Pakistan, two by ISIS-K, and four by the Taliban). In some cases the Taliban and other antigovernment elements used children as suicide bombers, human shields, and IED emplacers, particularly in southern provinces. Media, NGOs, and UN agencies reported the Taliban tricked children, promised them money, used false religious pretexts, or forced them to become suicide bombers.

See also the Department of State’s annual Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.

Other Conflict-related Abuse: The security environment continued to have a negative effect on the ability of humanitarian organizations to operate freely in many parts of the country. Violence and instability hampered development, relief, and reconstruction efforts. Insurgents deliberately targeted government employees and aid workers. NGOs reported insurgents, powerful local individuals, and militia leaders demanded bribes to allow groups to bring relief supplies into the country and distribute them. Antigovernment elements continued their targeting of hospitals and aid workers. According to media reports through August, 23 aid workers were killed, 37 injured, and 74 abducted. During 2017, UNAMA documented 75 incidents targeting health-care facilities and health-care workers, resulting in 65 civilian casualties (31 deaths and 34 injured) compared with 120 incidents during 2016 that caused 23 civilian casualties (10 deaths and 13 injured). On January 24, ISIS-K assaulted the Jalalabad office of Save the Children, killing three. In August the Taliban threatened the ICRC by rescinding guarantees for the security of its workers.

In the south and east, the Taliban and other antigovernment elements frequently forced local residents to provide food and shelter for their fighters. The Taliban also continued to attack schools, radio stations, and government offices. During the year the Taliban continued to threaten and shut down hundreds of schools, often in an attempt to extort revenue from Ministry of Education payrolls, according to media reports. In June more than 2,000 Islamic scholars, members of a group known as the Ulema Council, convened on the campus of the Polytechnic University of Kabul. On the morning of June 4, the group of scholars issued a fatwa, or religious edict, stating that the insurgency by extremist groups had no religious basis and that suicide bombings were forbidden by Islam. Shortly thereafter, a bomber detonated an explosive device outside the tent where the council had met, killing 14 of its members and injuring at least 20. On August 15, another bomber detonated an explosive device at the Mowud Education Center (MEC) in Kabul’s Dasht-e-Barchi District. As many as 500 students in their teens and twenties were studying for university entrance exams at MEC at the time of the attack, which left 34 dead and at least 57 injured. On August 16, the Islamic State claimed responsibility for the attack. The education center is largely attended by Kabul’s minority Shiite Hazara community. Reports suggested that the attack was part of a pattern of violence against the Hazara community.

There were no reports that the government or its agents committed arbitrary or unlawful killings.

There were no reports of disappearances by or on behalf of government authorities.

In March 2017 the 1985 disappearance case of U.S. citizen Boris Weisfeiler was placed on schedule for an appeals court hearing. There were no developments in the case during the year.

Although the constitution and law prohibit such practices, there were reports of excessive force, abuse, and degrading treatment by law enforcement officers. During the year the National Institute of Human Rights (INDH) filed seven criminal accusations that members of law enforcement had committed acts of torture during detention of student protesters, or for criminal arrests, or at prisons. On May 28, Carabineros special forces allegedly beat and strangled a Swiss Confederation High School student to the point of unconsciousness while removing student protesters from the school. On June 1, the INDH filed a criminal accusation for the case; the investigation was pending at year’s end.

Prison and Detention Center Conditions

Independent auditors determined that conditions in some prisons were considered below generally accepted standards, as promulgated by the Organization of American States, due to antiquated and overpopulated prisons that typically had substandard sanitary infrastructure and an inadequate water supply. Human rights organizations reported violence, including torture, occurred, as did violence among inmates.

Physical Conditions: The prison population was unevenly distributed across the prison system, with approximately 50 percent of prisons operating beyond maximum capacity, while others were underpopulated. Overpopulation and antiquated, inadequate facilities led to comingling of pre- and post-trial prisoners as a common practice. An independent magistrate’s report stated prisoners were often confined to their cells for the majority of the day, a practice that did not allow sufficient time for participation in rehabilitation and readjustment programs.

Administration: Independent government authorities, including the INDH, generally investigated credible allegations of mistreatment. The government usually investigated and monitored prison and detention center conditions.

Independent Monitoring: The government permitted prison visits by independent human rights observers, and such visits took place at both government and privately operated facilities. Prisoner and human rights groups continued to investigate alleged abuse or use of excessive force against detainees, and media covered some of the allegations.

d. Arbitrary Arrest or Detention

The constitution prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court, and the government generally observed those requirements.

ROLE OF THE POLICE AND SECURITY APPARATUS

The Carabineros and the Investigative Police (PDI) have legal responsibility for law enforcement and maintenance of order, including migration and border enforcement, within the country. The Ministry of the Interior and Public Security oversees both forces. The INDH monitors complaints and allegations of abuse.

Civilian authorities generally maintained effective control over the Carabineros and the PDI, and the government has mechanisms to investigate and punish abuse. There were no reports of impunity involving the security forces during the year.

ARREST PROCEDURES AND TREATMENT OF DETAINEES

Only public officials expressly authorized by law may arrest or detain citizens, and they generally did so openly with warrants based on sufficient evidence brought before an independent judiciary. Authorities must immediately inform a prosecutor of an arrest and generally did so.

The prosecutor must open an investigation, receive a statement from the detainee, and ensure that the detainee is held at a local police station until the detention control hearing. Detention control hearings are held twice daily, allowing for a judicial determination of the legality of the detention within 24 hours of arrest. Detainees must be informed of their rights, including the right to an attorney and the right to remain silent until an attorney is present. Public defenders are provided for detainees who do not hire their own lawyer. Authorities must expedite notification of the detention to family members. If authorities do not inform detainees of their rights upon detention, the judge can declare the process unlawful during the detention control hearing.

The law allows judges to set bail, grant provisional liberty, or order continued detention as necessary for the investigation or the protection of the prisoner or the public.

The law affords detainees 30 minutes of immediate and subsequent daily access to a lawyer (in the presence of a prison guard) and to a doctor to verify their physical condition. Regular visits by family members are allowed.

The constitution provides for an independent judiciary, and the government generally respected judicial independence and impartiality.

TRIAL PROCEDURES

The constitution and law provide for the right to a fair and public trial, and an independent judiciary generally enforced that right.

Defendants enjoy a presumption of innocence and have a right of appeal. They have the right to be informed promptly of charges, to have time to prepare their defense, and not to be compelled to testify or admit guilt. Three-judge panels form the court of first instance. The process is oral and adversarial, defendants have the right to be present and consult with an attorney in a timely manner, and judges rule on guilt and dictate sentences. Defendants have the right to free assistance of an interpreter. Court records, rulings, and findings were generally accessible to the public.

The law provides for the right to legal counsel, and public defenders’ offices across the country provided professional legal counsel to anyone seeking such assistance. When human rights organizations or family members requested, the nongovernmental organization (NGO) Corporation for the Promotion and Defense of the Rights of the People and other lawyers working pro bono assisted detainees during interrogation and trial. Defendants may confront or question adverse witnesses and present witnesses and evidence on their behalf, although the law provides for secret witnesses in certain circumstances.

For crimes committed prior to the implementation of the 2005 judicial reforms, criminal proceedings are inquisitorial rather than adversarial. As of December 1, one inquisitorial criminal court remained open and had an extensive wait for trials.

POLITICAL PRISONERS AND DETAINEES

There were no reports of political prisoners or detainees.

CIVIL JUDICIAL PROCEDURES AND REMEDIES

In civil matters there is an independent and impartial judiciary, which permits individuals to seek civil remedies for human rights violations; however, the civil justice system retained antiquated and inefficient procedures, which resulted in civil trials lasting years if not decades. Administrative and judicial remedies are available for alleged wrongs. Cases involving violations of an individual’s human rights may be submitted through petitions by individuals or organizations to the Inter-American Commission of Human Rights (IACHR), which in turn may submit the case to the Inter-American Court of Human Rights. The court may order civil remedies including fair compensation to the individual injured.

The constitution prohibits such actions, and there were no reports that the government failed to respect these prohibitions.

There were no reports that the government or its agents committed arbitrary or unlawful killings.

There were no reports of disappearances by or on behalf of government authorities.

The constitution and law prohibit such practices, but there were reports that such abuse sometimes occurred. NGOs noted the investigation of cases of mistreatment was often inefficient, the success rate of prosecution was low, and in some cases officials convicted for committing criminal offenses were permitted to continue working.

As of October the national preventive mechanism under the Optional Protocol to the UN Convention against Torture (OPCAT) undertook four visits to places of detention (one prison, two police facilities, and one social institution for persons with psychosocial disabilities).

Prison and Detention Center Conditions

Official statistics and NGOs reported overcrowding and poor physical conditions in the prison system. There were occasional reports of physical violence by prison guards, prisoner-on-prisoner violence, and authorities holding pretrial detainees and convicted prisoners together.

Physical Conditions: Prison overcrowding remained a problem. According to data provided by the National Penitentiary Headquarters, in 2017 the average occupancy rate decreased from 131 percent to 129 percent. In 2015 authorities adopted action plans on how to increase the official capacity of the prison system. A law requires payment of compensation to prisoners placed in overcrowded cells.

The commissioner for fundamental rights (ombudsman) issued four public reports during the year on the findings of visits that occurred in 2016-17 (one juvenile correctional institute, two police facilities, and one integrated care center for elderly residents, addicts, and persons with diminished capacity). The report determined that the practice of placing juveniles with mental or psychosocial disabilities or personality disorders in isolation as a form of punishment violated their rights. The reports on the two police facilities found the cells’ living space was less than the statutory minimum size, the walls were dirty, lighting was inadequate, and the courtyard was in poor condition. The last report determined that the integrated care center did not provide the statutory minimum living space per person, was not suitable for the placement of patients because of the building’s inaccessibility, and did not employ a full-time doctor.

NGOs continued to report poor physical and sanitary conditions in certain penitentiaries, including the presence of bedbugs and other insects, insufficient toilet facilities, and toilets not separated from living spaces. NGOs also noted frequent shortages of both natural light and artificial lighting in cells and a lack of adequate heating and alleged a continued shortage of psychological care.

Administration: NGOs reported that authorities occasionally failed to investigate credible allegations of mistreatment. There was no separate ombudsperson for prisons, but detainees could submit complaints to the commissioner for fundamental rights or to the prosecutor’s office responsible for supervising the lawfulness of detention. The ombudsman handled prison complaints and conducted ex officio inquiries but had no authority to act on behalf of prisoners.

Independent Monitoring: Authorities allowed the Council of Europe’s Committee for the Prevention of Torture (CPT) and the UN Subcommittee on the Prevention of Torture (SPT) to conduct periodic and ad hoc visits to prisons and detention centers for both Hungarians and foreign nationals. On September 18, the CPT published the report on treatment and conditions of detention of foreigners from its 2017 visit to the country. The report observed decent treatment in detention centers but noted that many detainees alleged they had been physically mistreated by police officers during their “push-backs” to Serbia. Several of them at the time displayed recent traumatic injuries. The CPT carried out a visit to Hungary from November 20 to 29. No independent NGO monitoring of police detention and prisons had taken place since 2017, when authorities terminated long-standing monitoring agreements with NGOs.

The government’s Office of the Commissioner for Fundamental Rights continued to operate prison monitoring services prescribed by OPCAT but reported it had little capacity to conduct visits and investigations. A 2017 SPT report on the national preventive mechanism noted that, since its establishment in 2015, the mechanism had carried out 15 visits to places of deprivation of liberty but had limited human and financial resources to undertake its work.

d. Arbitrary Arrest or Detention

The constitution and law prohibit arbitrary arrest and detention and provide for the right of any person to challenge the lawfulness of his or her arrest or detention in court. The government generally observed these requirements.

ROLE OF THE POLICE AND SECURITY APPARATUS

The National Police Headquarters (ORFK), under the direction of the minister of interior, is responsible for maintaining order nationwide. The country’s 19 county police departments and the Budapest police headquarters are directly subordinate to the ORFK. City police have local jurisdiction but are subordinate to the county police. Two other units, the Counterterrorism Center (commonly known by its Hungarian acronym “TEK”) and the National Protective Service (NPS), are directly subordinate to the minister of interior. The TEK is responsible for protecting the prime minister and the president and also for preventing, uncovering, and detecting terrorist acts–including kidnappings, hijackings, and other offenses related to such acts–and arresting the perpetrators. The NPS is responsible for preventing and detecting internal corruption in law enforcement agencies, government administrative agencies, and civilian secret services. Both the TEK and the NPS are empowered to gather intelligence and conduct undercover policing, in certain cases without prior judicial authorization.

The national intelligence services, the Constitution Protection Office and the Special Service for National Security, are under the supervision of the minister of interior and responsible for domestic intelligence. The law also provides for the Counterterrorism Information and Crime Analysis Center (TIBEK), a national security service entity under the direct supervision of the minister of interior. TIBEK has no authority to conduct secret information gathering activities and has no access to information collected by the NPS on police officers.

The Hungarian Defense Force is subordinate to the Ministry of Defense and is responsible for external security as well as aspects of domestic security and disaster response. Since 2015, under a declared state of emergency prompted by mass migration, defense forces may assist law enforcement forces in border protection and handling mass migration situations (see also section 2.d., Access to Asylum). The Military National Security Service, which is responsible for military intelligence and counterintelligence, operates under the supervision of the minister of defense.

In the event of an act of terror or considerable and immediate danger, parliament, at the initiative of the cabinet, can declare a state of emergency with the support of two-thirds of members of parliament present. The cabinet can then issue decrees to suspend the application of or derogate from certain laws, or to take other extraordinary measures for up to 15 days before the special legal order must be confirmed by a two-thirds parliamentary vote. Such measures may include tightening border controls, transferring air traffic control to the military, deploying armed forces and law enforcement forces to protect critical infrastructure, and taking special counterterrorism measures. The amendment specifies that the cabinet can deploy armed forces domestically only if the use of law enforcement and national intelligence agencies are insufficient under the threat of terror.

Civilian authorities generally maintained effective control over law enforcement and the armed forces, and the government had effective mechanisms to investigate and punish abuse and corruption. Military prosecutors are responsible for investigating abuses by military, police, penitentiary staff, parliamentary guards, clandestine services, and disaster units.

ARREST PROCEDURES AND TREATMENT OF DETAINEES

Police are obligated to take into “short-term arrest” individuals apprehended while committing a crime or subject to an arrest warrant. Police may take into short-term arrest individuals suspected of having committed a crime or a petty offense, are unable or unwilling to identify themselves, and are unaccompanied minors suspected of having run away. Short-term arrests generally last up to eight hours but may last up to 12 hours in exceptional cases. Police may hold persons under “detention for the purposes of public safety” for 24 hours. Detention of persons who abscond from probation may last up to 72 hours. Police, a prosecutor, or a judge may order detention of suspects for 72 hours if there is a well-founded suspicion of an offense punishable by imprisonment. A pretrial detention motion must be filed with a court prior to the lapse of the 72-hour period. A defendant may appeal a pretrial detention order.

Police must inform suspects of the charges against them at the beginning of their first interrogation, which must be within 24 hours of detention. Authorities generally respected this right.

There is a functioning bail system. Representation by defense counsel is mandatory in the investigative phase if suspects face a charge punishable by more than five years’ imprisonment; their personal liberty is already restricted; they are deaf, blind, unable to speak, or have a mental disability; they are unfamiliar with the Hungarian language or the language of the procedure; they are unable to defend themselves in person for any reason; they are juveniles; or they are indigent and request appointment of a defense counsel. A defense counsel can also be ordered by the court, prosecution, or the investigation authority (police) in certain cases. In some locations the selection of state-paid defense counsel was transferred from the police to the respective county bar chambers.

Police must inform suspects of their right to counsel before questioning them. Under previous rules neither police nor the prosecutor was obligated to wait for counsel to arrive before interrogating a suspect. This changed in July with the entry into force of a new criminal procedure law. If a defense counsel is requested or ordered, the counsel is notified and the investigation authority or the prosecution suspends the interrogation, for up to two hours, until the arrival of counsel. Some attorneys reported that the right to an effective defense was violated in several cases. For example, in some instances detainees and their defense counsel reportedly were required to meet where government security cameras could monitor them.

The law permits short-term detainees to notify relatives or others of their detention within eight hours unless the notification would jeopardize the investigation. Investigative authorities must notify relatives of a person under short-term detention and the detainee’s location within eight hours.

Pretrial Detention: An investigatory judge may order pretrial detention where there is a risk a detainee may flee, commit a new offense, or hinder an investigation. Cases involving pretrial detention take priority over other expedited hearings. A detainee may appeal pretrial detention.

When the criminal offense is punishable by life in prison, the law does not limit the duration of pretrial detention.

As of December 2017, there were 3,330 persons (a 9 percent decrease from the previous year) held in pretrial detention, amounting to 19.2 percent of the total prison population, according to the 2017 Yearbook of the National Prison Administration.

The presence of defense counsel at hearings related to pretrial detention is not mandatory.

Detainee’s Ability to Challenge Lawfulness of Detention before a Court: A defendant may at any point move for release from pretrial detention. Any person who believes that a short-term arrest violated his or her fundamental rights may file a complaint with the police unit responsible or with the Independent Police Complaints Board.

The law provides that persons held in pretrial detention and later acquitted may receive monetary compensation.

The constitution and law provide for an independent judiciary. Courts generally functioned independently, although reports of political pressure on judges by senior members of the government increased during the year.

On May 2, the National Judicial Council (OBT) adopted a report that said the National Office for the Judiciary (OBH) president–who maintains broad executive authority to manage the courts–did not always comply with the law when appointing judges and court executives. The report concluded for instance that OBH President Tunde Hando declared a bid for a candidate in a senior-court judge position invalid without explanation and despite an independent selection panel’s support of the candidate, had not explained her personnel decisions in several cases, and her assessment of applicants’ bids for senior court positions was not transparent. Hando responded by asserting the OBT report was illegitimate due to the resignations of a large number of OBT member judges earlier in the year, initiating disciplinary actions against four OBT member judges, and calling some of them “traitors of the country.”

The prime minister and other senior members of the government publicly criticized court decisions, including some that remained open for appeal. In May the prime minister was quoted by his press chief as saying that the Curia (Supreme Court) was “intellectually unfit.” Also in May government-aligned media accused specific Curia judges by name of being “obvious antigovernment actors” and called the Curia itself “a political player.”

On June 20, parliament passed an amendment to the constitution that separates administrative cases from the ordinary court structure, and on December 12, it passed a law creating a new administrative court system. The law creates eight new regional administrative courts and an Administrative High Court (AHC), which will take over all competences of the ordinary courts and the Curia in administrative cases, including those related to public procurement, civil liberties, complaints against police action, asylum cases, freedom of information requests, and tax decisions. In the new system, the justice minister will hold significant power in selecting and appointing new judges to the AHC and lower administrative courts, appointing court presidents and judges to senior positions as well as promotions, determining the administrative court’s budgets, and shaping the new court system during the transitional period of 2019, when new judges, new court presidents, and senior judges will be appointed. The hiring criteria for AHC judges will apply greater weight to ministerial and government experience than to judicial experience, leading some observers to be concerned that judges will be selected based on political loyalty. The government argued a new court system was necessary to improve efficiency in deciding administrative cases and noted a similar system existed in the country from 1896 to 1949. An October report based on 2016 data by the Council of Europe’s European Commission for the Efficiency of Justice on judicial efficiency in Europe found the country’s courts to be effective and relatively fast in returning decisions.

During the year Transparency International Hungary continued to criticize the right of the prosecutor general to give instructions to subordinate prosecutors in individual cases, to take over any case from any prosecutor, and to reassign cases to different prosecutors at any stage of the procedure without providing justification. In 2015 the Council of Europe Group of States against Corruption released a report expressing concern that the prosecutor general may remain in office indefinitely after the expiration of his or her nine-year term until parliament elects a successor by a two-thirds majority vote.

TRIAL PROCEDURES

The constitution and law provide for the right to a fair public trial, and the judiciary generally enforced this right.

Defendants are presumed innocent until proven guilty. Suspects have the right to be informed promptly of the nature of charges against them and of the applicable legal regulations, with free interpretation as necessary. Trial proceedings are public, although a judge may minimize public attendance and may order closed hearings under certain conditions. Trials generally occurred without undue delay. Defendants have the right to be present at their trial.

The law stipulates that the investigating authority shall schedule the interrogation to enable defendants to exercise their right to a defense. A summons for a court hearing must be delivered at least five days prior to the hearing. Defendants have the right to free interpretation from the moment charged. Defendants may challenge or question witnesses and present witnesses and evidence on their own behalf. The law states that no one may be compelled to provide self-incriminating testimony or produce self-incriminating evidence. Defendants have the right of appeal.

Courts may not impose prison sentences on juveniles who were between the ages of 12 and 14 when committing the offense, but may order placement in a juvenile correctional institute.

POLITICAL PRISONERS AND DETAINEES

The constitution and law provide for the right to a fair public trial, and the judiciary generally enforced this right.

Defendants are presumed innocent until proven guilty. Suspects have the right to be informed promptly of the nature of charges against them and of the applicable legal regulations, with free interpretation as necessary. Trial proceedings are public, although a judge may minimize public attendance and may order closed hearings under certain conditions. Trials generally occurred without undue delay. Defendants have the right to be present at their trial.

The law stipulates that the investigating authority shall schedule the interrogation to enable defendants to exercise their right to a defense. A summons for a court hearing must be delivered at least five days prior to the hearing. Defendants have the right to free interpretation from the moment charged. Defendants may challenge or question witnesses and present witnesses and evidence on their own behalf. The law states that no one may be compelled to provide self-incriminating testimony or produce self-incriminating evidence. Defendants have the right of appeal.

Courts may not impose prison sentences on juveniles who were between the ages of 12 and 14 when committing the offense, but may order placement in a juvenile correctional institute.

CIVIL JUDICIAL PROCEDURES AND REMEDIES

By law individuals or organizations may seek civil remedies for human rights violations through domestic courts. Individuals or organizations who have exhausted domestic legal remedies regarding violations of the European Convention on Human Rights allegedly committed by the state may appeal to the European Court of Human Rights (ECHR) for redress.

PROPERTY RESTITUTION

The government has laws and/or mechanisms in place, and NGOs and advocacy groups reported that based on these steps the government made some progress on the resolution of Holocaust-era claims.

Communal property restitution in the country was completed in the 1990s based on a law that allowed religious organizations to claim previously owned properties that were confiscated after January 1946. Private property restitution was still ongoing. Holocaust survivors from the country receive pension supplements. The 1947 Paris Peace Treaty regulates the restitution of heirless Jewish properties in the country. In 2007 the government pledged and subsequently distributed $21 million to assist Holocaust survivors in the country and survivors of Hungarian origin living abroad as an advance payment on an expected, subsequent agreement that would provide more comprehensive compensation. The Jewish Heritage of Hungary Public Endowment, a domestic restitution foundation composed of local Hungarian Jews, government officials, and the World Jewish Restitution Organization (WJRO), distributed one-third of the funds to survivors living in the country, while two-thirds were transferred to the Claims Conference to fund social welfare services for survivors in need living outside the country. In 2016 the government released a report on heirless property and was working with WJRO experts on a roadmap for completing the research and determining the value of unreturned heirless property in the country. During the year the government agreed in principle on a timetable to conclude this research and finalize negotiations on a settlement.

The constitution and law prohibit such actions, and there were no reports the government failed to respect these prohibitions.

There is no requirement for prior judicial authorization of surveillance by the TEK and sometimes by the national intelligence services in cases related to national security that involve terrorism. In such cases the justice minister may permit covert intelligence action for 90 days, with a possibility of extension. Such intelligence collection may involve secret house searches, surveillance with recording devices, opening of letters and parcels, and checking and recording electronic or computerized communications without the consent of the persons under investigation. This decision is not subject to appeal.

In 2016 the ECHR ruled that the law authorizing the surveillance of citizens by law enforcement bodies without court approval constituted a violation of the right to privacy. Prior to the ECHR’s verdict, a 2013 ruling of the Constitutional Court found it sufficient that external control over any surveillance authorized by the minister was supervised by parliament’s National Security Committee and the ombudsman. There were no changes introduced to the contested legislation during the year.

The country’s new criminal procedure code, in force since July 1, establishes a new regime for covert policing and intelligence gathering. The law gives prosecutors unrestricted access to information obtained through covert investigations.

There were numerous reports the government or its agents committed arbitrary and unlawful killings, particularly of known or suspected criminals, including terrorists. In September eight nongovernmental organizations (NGO) based in the northern region jointly issued a statement listing extrajudicial killings and enforced disappearances at top of their list of human rights concerns. In September the NGO HAKI Africa provided the ODPP a list of 34 youth whom police allegedly executed over nine months since the beginning of the year. The ODPP committed to pursue investigations and requested additional evidence and assistance from HAKI. The NGO Independent Medico Legal Unit alleged that police in Nairobi summarily executed 58 individuals, mostly in informal settlements, between January to June. In March 2017 video footage surfaced on the internet of an alleged plainclothes police officer shooting two subdued suspects in the Nairobi neighborhood of Eastleigh. According to the newspaper Daily Nation, the Nairobi police commander defended the shooting, calling the victims “gangsters.” The Inspector General’s investigation continued as of year’s end.

In August IPOA reported a summary execution of a suspected carjacker. The police, who had allegedly shot the victim twice, hauled him from a church where he had sought refuge. IPOA’s investigation continued as of the year’s end.

Some groups alleged authorities significantly underestimated the number of extrajudicial killings by security forces due to underreporting of such killings in informal settlements, including those in dense urban areas. The NGO Mathare Social Justice Center estimated police killed at least one young male every week in the Mathare neighborhood of Nairobi. During the year IPOA received 461 complaints regarding deaths resulting from police actions, including 15 fatal shootings involving police and 446 deaths due to other actions by police.

NGOs and the autonomous governmental entity Kenyan National Commission on Human Rights (KNCHR) reported in 2017 that authorities killed between 35 and 100 persons and injured many others in opposition strongholds following the August 2017 elections. A KNCHR report released in November documented 201 cases of sexual assault in nine counties emanating from the post-election violence, primarily during periods of increased civil unrest. The study found that police and other security officers committed 55 percent of the documented sexual assaults (see section 6). The report indicated that KNCHR turned over its findings to IPOA for official inquiry. IPOA’s investigations stemming from election violence continued as of the year’s end.

Media reports and NGOs attributed many of the human rights abuses not related to elections to Kenya Defense Forces counterterrorism operations in the northeast counties of Mandera, Garissa, and Wajir bordering Somalia. In September rights groups including Muslims for Human Rights led protests in Mombasa against extrajudicial killings and abductions by security forces. The groups alleged that on September 6, authorities gunned down three youths, ages 17, 17, and 19, absent proof of guilt. Police responded that the three had been caught preparing to commit a crime.

Impunity remained a serious problem (see section 1.d.).

Al-Shabaab terrorists conducted deadly attacks and guerilla-style raids on isolated communities along the border with Somalia. For example, in September al-Shabaab fighters reportedly stopped a bus in Lamu County, separated the passengers by religion, and then executed two Christian passengers before setting free the other passengers.

Observers and NGOs alleged members of the security forces were culpable of forced disappearances. In June media reported civilian protests in Garissa County over the alleged disappearance of 14 residents. There were accusations of government involvement and use of police officers. On July 26, human rights lobby group HAKI Africa reported that between January and June, the Garissa police abducted or forced the disappearance of 46 civilians.

The media also reported on families on the coast and in northeastern counties searching for relatives who disappeared following arrest and of authorities holding individuals incommunicado for interrogation for several weeks or longer (see section 1.d.).

In 2017 President Kenyatta approved the Prevention of Torture Act, which provides a basis to prosecute torture. The law provides a platform to apply articles of the 2010 constitution, including: Article 25 on freedom from torture and cruel, inhuman, or degrading treatment or punishment; Article 28 on respect and protection of human dignity; and Article 29 on freedom and security of the person. The law brings all state agencies and officials under one, rather than multiple pieces of legislation. Additionally, the law provides protections to vulnerable witnesses and law enforcement officials who refuse to obey illegal orders that would lead to torture. The government, however, had not implemented the guidelines required to operationalize the Prevention of Torture Act.

Pretrial detainees accused police of use of torture. In September a shooting suspect filed a formal complaint with IPOA alleging torture by police and continued detention beyond the maximum legal duration. That investigation continued as of year’s end.

Police reportedly used torture and violence during interrogations as well as to punish both pretrial detainees and convicted prisoners. According to human rights NGOs, physical battery, bondage in painful positions, and electric shock were the most common methods of torture used by police. A range of human rights organizations and media reported police committed torture and indiscriminate violence with impunity. For example, there were numerous press and NGO reports of police brutality against protestors and unarmed citizens, including in house-to-house operations in the days following the August 2017 elections (see section 3).

Prison and Detention Center Conditions

Human rights organizations reported that prison, detention center, and police station conditions were harsh due to overcrowding, food and water shortages, and inadequate sanitary conditions and medical care. A Directorate of Health Services in the Prisons Department oversees health and hygiene issues.

Physical Conditions: According to the Kenya Prisons Service (PS), the prison population as of September was 51,130, held in prisons with a designated capacity of 26,837. More than 90 percent of prisoners were men. According to the National Council on the Administration of Justice’s (NCAJ) January report, the country has 105 prisons–87 for men and 18 for women. While the PS noted that seven prisons have been constructed since 2012, serious overcrowding was the norm, with an average prisoner population of nearly 200 percent capacity and some prisons housing up to 400 percent of capacity. Authorities continued a “decongestion” program that entailed releasing petty offenders and encouraging the judiciary to increase use of the Community Service Orders program in its sentencing.

The PS reported 131 deaths as of September, many attributable to sicknesses caused or exacerbated by overcrowding, lack of access to clean water, poor hygiene, and inadequate medical care. According to a study by the NCAJ released in 2017, sanitary facilities were inadequate, and tuberculosis remained a serious problem at eight prisons.

In January 2017 the NCAJ reported that despite the legal requirement to separate male prisoners from women and children, the mixing of genders and ages remained a problem in some prisons. Between January and June 2017, IPOA observed that authorities separated women from men in detention facilities on average 89 percent of the time in the 29 detention facilities its representatives visited. In smaller jails, female prisoners were not always separated from men. There were no separate facilities during pretrial detention, and sexual abuse of female prisoners was a problem. Human rights groups reported that police routinely engaged in non-consensual sex with female prisoners and that many female inmates resorted to prostitution to obtain necessities, such as sanitary items and underwear, which the Prisons Service did not provide.

Authorities generally separated minors from adults except during the initial detention period at police stations, when authorities often held adults and minors of both sexes in a single cell. Minors often mixed with the general prison population during lunch and exercise periods, according to the Coalition for Constitutional Interpretation, a domestic NGO. Prison officials reported that because there were few detention facilities for minors, authorities often had to transport them long distances to serve their sentences, spending nights at police stations under varying conditions along the way. In October 2017 the Daily Nation newspaper reported a witness had accused a police officer of raping a 13-year-old victim while she was held overnight at a police station for alleged theft. IPOA investigated the incident. A criminal prosecution was proceeding in the courts.

The law allows children to stay with their inmate mothers in certain circumstances until age four or until arrangements for their care outside the facilities are concluded, whichever is earlier.

Prisoners generally received three meals a day, but portions were inadequate. The PS stated in August that it no longer served a penal diet for punishment. Water shortages, a problem both inside and outside of prison, continued. Prisoners generally spent most of their time indoors in inadequately lit and poorly ventilated cellblocks. This was especially true for the more than one-third of inmates awaiting trial, as they were not engaged in any work programs that would allow them to leave their cells regularly.

Administration: Mechanisms for prisoners to report abuse and other concerns improved due to collaboration between the PS and the KNCHR to monitor human rights standards in prison and detention facilities. By law, the Commission on the Administration of Justice serves as ombudsman on government administration of prisons. It is to receive and treat as confidential correspondence from inmates and recommend remedies to address their concerns, including those pertaining to prison living conditions and administration. Government-established special committees, which included paralegals and prison officials, also served to increase prisoners’ access to the judicial system. The Legal Aid Center of Eldoret noted there was no single system providing “primary justice” to prisoners and detainees, who instead relied on a patchwork of services largely provided by NGOs. Many government-designated human rights officers lacked necessary training, and some prisons did not have a human rights officer.

Noncustodial community service programs and the release of some petty offenders alleviated somewhat prison overcrowding. The total prison population did not decrease substantially, however, because of unaffordable bail and bond terms for pretrial detainees, high national crime rates, overuse of custodial sentencing, and a high number of death row and life-imprisoned inmates. Legal rights NGOs and prison officials reported overuse of the charge of “robbery with violence,” which may carry a life sentence, without sufficient evidence to support it. Some petty offenders consequently received disproportionately heavy sentences.

Prison officials sometimes denied prisoners and detainees the right to contact relatives or lawyers. Family members who wanted to visit prisoners commonly reported bureaucratic obstacles that generally required a bribe to resolve. According to the Legal Resources Foundation, prisoners had reasonable access to legal counsel and other official visitors, although there was insufficient space in many prisons and jails to meet with visitors in private and conduct confidential conversations.

Independent Monitoring: The government permitted prison visits by independent nongovernmental observers.

d. Arbitrary Arrest or Detention

The law prohibits arrest or detention without a court order unless there are reasonable grounds for believing a suspect has committed or is about to commit a criminal offense. Police, however, arrested and detained citizens arbitrarily, accused them of more severe crimes than they had committed, or accused them of a crime to mask underlying police abuses.

ROLE OF THE POLICE AND SECURITY APPARATUS

The National Police Service (NPS) maintains internal security and is subordinate to the Ministry of Interior and Coordination of National Government (Interior).

In September President Kenyatta announced the reorganization of the NPS, which includes the Kenya Police Service (KPS), the Administration Police Service, and the Directorate of Criminal Investigations (DCI). The KPS remains responsible for general policing and contains specialized subunits, such as the paramilitary General Services Unit, which responds to large-scale incidents of insecurity. The Administration Police Service is now comprised of units dedicated to border security, protection of critical infrastructure, and prevention of livestock theft. The DCI is responsible for all criminal investigations and includes specialized investigative units, such as the Antinarcotics Unit, the Antiterrorism Police Unit, and the Forensics Unit.

The National Intelligence Service collects intelligence internally as well as externally and is under the direct authority of the president.

The Kenya Defense Forces are responsible for external security but have some domestic security responsibilities, including border security and supporting civilian organizations in the maintenance of order, including post-disaster response, as allowed by the constitution. The defense forces are subordinate to the Ministry of Defense. In 2015 the defense forces and police launched a coordinated operation to drive al-Shabaab terrorists out of the Boni Forest in northern Lamu and southern Garissa counties; the operation continued throughout the year.

The National Police Service Commission (NPSC) and IPOA, both government bodies, report to the National Assembly. The NPSC consists of six civilian commissioners, including two retired police officers, as well as the NPS inspector general and two deputies. The commission’s tenure ended in September; the NPSC chief operating officer was managing the NPSC until a new commission is installed. The NPSC is responsible for recruiting, transferring, vetting, promoting, and disciplining NPS. IPOA investigates serious police misconduct, especially cases of death and grave injury at the hands of police officers.

The ODPP is empowered to direct the NPS inspector general to investigate any information or allegation of criminal conduct and to institute criminal proceedings in police abuse or corruption cases.

Impunity was a major problem. Authorities sometimes attributed the failure to investigate a case of police corruption or unlawful killing to the failure of victims to file official complaints. Victims can file complaints at regional police stations, police headquarters through the Internal Affairs Unit (IAU), and through the IPOA website and hotline. More than half of all allegations of death or bodily harm by the NPS were filed at IPOA in person. Sometimes police turned away victims who sought to file complaints at police stations where alleged police misconduct originated, and instead directed them to other area stations. This created a deterrent effect on reporting complaints against police. NGOs documented threats against police officers who attempted to investigate criminal allegations against other police officers. The National Coroners Service Act, adopted in 2017, lacked enforcement regulations and funding.

Police failed to prevent vigilante violence in numerous instances but in other cases played a protective role (see section 6).

Poor casework, incompetence, and corruption undermined successful prosecutions; the overall conviction rate for criminal prosecutions was between 13 and 16 percent. Police also frequently failed to enter detainees into custody records, making it difficult to locate them. Dispute resolution at police stations resolved a significant number of crimes, but authorities did not report or record them, according to human rights organizations.

Witness harassment and fear of retaliation severely inhibited the investigation and prosecution of major crimes. The Witness Protection Agency was underfunded, doubts about its independence were widespread, and the Supreme Court cited its weaknesses as a serious judicial shortcoming. It cooperated closely with IPOA and other investigative bodies.

Human rights activists reported that at times police officers in charge of taking complaints at the local level were the same ones who committed abuses. Police officials resisted investigations and jailed some human rights activists for publicly registering complaints against government abuses.

Research by a leading legal advocacy and human rights NGO found police used disciplinary transfers of officers to hide their identities and frustrate investigations into their alleged crimes. Many media and civil society investigations into police abuse ended after authorities transferred officers, and police failed to provide any information about their identities or whereabouts.

Police accountability mechanisms, including those of IAU and IPOA, increased their capacity to investigate cases of police abuse. The IAU director reports directly to the NPS Inspector General. Fifty-eight officers served in the IAU, mostly investigators with a background in the Kenya Police Service and the Administration Police Service. The IAU conducts investigations into police misconduct, including criminal offenses not covered by IPOA. Between January and September, the IAU received approximately 900 complaints, the number of which had increased year-to-year as police and the public became more familiar with the IAU. The Ethics and Anticorruption Commission (EACC), an independent agency, investigates cases involving police corruption.

In addition to regional offices in Mombasa, Kisumu, and Garissa, during the year IPOA opened six more offices in Nakuru, Eldoret, Kakamega, Nyeri, Meru, and Lodwar and increased its staff by 100 to 212. Through the end of September, IPOA received 1,853 complaints, bringing the total since its inception in 2012 to 10,966. IPOA defines five categories of complaints. Category One complaints comprise the most serious crimes–such as murders, torture, rape, and serious injury–and result in an automatic investigation. Category Two, serious crimes such as assault without serious injury, are investigated on a case-by-case basis. Categories Three to Five, less serious crimes, are generally not investigated. Approximately one-third of IPOA complaints fall under Categories One and Two. If, after investigation, IPOA determines there is criminal liability in a case, it forwards the case to the ODPP. Through the end of September, IPOA launched 717 investigations, of which five were forwarded to the ODPP. As of October IPOA and ODPP had two cases pending in courts. On January 7, IPOA secured the conviction of police officer Titus Musila for killing Kenneth Kimani Mwangi in 2013. The court sentenced Musila to 15 years in prison. On November 14, a court sentenced two police officers to death for killing their colleague, Joseph Obongo, and two of his relatives in 2014.

The law requires that the NPSC eventually vet all serving police officers. Vetting required an assessment of each officer’s fitness to serve based on a review of documentation, including financial records, certificates of good conduct, and a questionnaire, as well public input alleging abuse or misconduct. The NPSC reported it had vetted more than more than 15,000 officers since 2012. A significant portion of the officers vetted during the year were from the traffic department. The NPSC also vetted a higher number of chief inspectors than in the past, of which the NPSC removed 50 for corruption, human rights abuses, and other reasons. Some legal challenges brought by officers vetted out of the service continued in court.

ARREST PROCEDURES AND TREATMENT OF DETAINEES

The law provides police with broad powers of arrest. Police officers may make arrests without a warrant if they suspect a crime occurred, is happening, or is imminent. Victims’ rights NGOs reported that in some cases authorities required victims to pay bribes and to provide transportation for police to a suspect’s location to execute a legal arrest warrant.

The constitution’s bill of rights provides significant ‎legal protections, including provisions requiring persons to be charged, tried, or released within a certain time and provisions requiring the issuance of a writ of habeas corpus to allow a court to determine the lawfulness of detention. In many cases, however, authorities did not follow the prescribed time limits. According to the attorney general in a response to a questionnaire from the Office of the UN High Commissioner for Human Rights in 2013, “an unexplained violation of a constitutional right will normally result in an acquittal.” While authorities in many cases released the accused if held longer than the prescribed period, some cases did not result in an acquittal, and authorities provided no compensation.

Police used excessive force in some cases when making arrests. IPOA investigated allegations of excessive force that led to serious injury.

The constitution establishes the right of suspects to bail unless there are compelling reasons against release. There is a functioning bail system, and all suspects, including those accused of capital offenses, are eligible for bail. Many suspects remained in jail for months pending trial because of their inability to post bail. Due to overcrowding in prisons, courts rarely denied bail to individuals who could pay it, even when the circumstances warranted denial. For example, NGOs that worked with victims of sexual assault complained that authorities granted bail to suspects even in cases in which there was evidence that they posed a continuing threat to victims.

Although the law provides pretrial detainees with the right to access family members and attorneys, family members of detainees frequently complained that authorities permitted access only upon payment of bribes. When detainees could afford counsel, police generally permitted access to attorneys.

Arbitrary Arrest: Police arbitrarily arrested and detained persons. Victims of arbitrary arrest were generally poor young men. Human rights organizations complained that security forces made widespread arbitrary arrests and detentions during counterterrorism operations and targeted ethnic Somalis and Kenyan Muslims. In March 2017 AP officers allegedly arrested and assaulted Standard newspaper journalist Isaiah Gwengi over his stories on police brutality. The IPOA investigation continued at year’s end.

Pretrial Detention: Lengthy pretrial detention was a serious problem and contributed to prison overcrowding. Some defendants were held in pretrial detention longer than the statutory maximum term of imprisonment for the crime with which they were charged. The government claimed the average time spent in pretrial detention was 14 days, but there were reports many detainees spent two to three years in prison before their trials were completed. Police from the arresting locale are responsible for bringing detainees from prison to court when hearings are scheduled but often failed to do so, forcing detainees to wait for the next hearing of their cases (see section 1.e.).

Detainee’s Ability to Challenge Lawfulness of Detention Before a Court: The law entitles persons arrested or detained to challenge in court the legal basis or arbitrary nature of their detention, but that right was not always protected in practice. In February authorities failed to comply with a court order to produce opposition lawyer Miguna Miguna in court. Authorities instead deported Miguna on February 6, claiming that he had given up his Kenyan citizenship upon obtaining Canadian citizenship. Miguna attempted to re-enter Kenya in March, but was detained at the airport. Authorities ignored two court orders to produce or release Miguna and instead deported the lawyer a second time on March 28.

The constitution provides for an independent judiciary, although the government did not always respect judicial impartiality. The government sometimes undermined the independence of the judiciary. In April the minister of interior claimed the judiciary was “captured” by civil society with the intent to stall and embarrass the government.

Reform of the judiciary continued. In August the director of public prosecution directed anticorruption authorities to investigate the judiciary over allegations of misuse and loss of court funds. On August 28, authorities arrested the deputy chief justice for suspected corruption. She faces charges for abuse of office for personal gain, and undermining public integrity in the judiciary. The case against the deputy chief justice was ongoing as of year’s end. Authorities generally respected court orders, and the outcomes of trials did not appear to be predetermined.

In June parliament accused the judiciary of meddling in the legislative process, citing court orders against parliamentary procedures.

The Judicial Service Commission (JSC)–a constitutionally mandated oversight body intended to insulate the judiciary from political pressure–provides the president with a list of nominees for judicial appointment. The president selects one of the nominees for parliamentary approval. The president appoints the chief justice and appellate and High Court judges through this process. The commission publicly reviews judicial appointees. As of October President Kenyatta had not formally installed JSC nominee Judge Mohammed Warsame, whom the JCS nominated in April.

In December 2017 the judiciary issued the State of the Judiciary and the Administration of Justice Report for 2016-17, which cited more than 60,000 cases pending in court for between five and 10 years. The judiciary improved its case clearance rate during the year and substantially reduced case backlog by increasing benches of judges sitting daily.

The constitution gives the judiciary authority to review appointments and decisions made by other branches of government. Parliament generally adhered to judicial decisions, with some exceptions.

For example, in August 2016 a High Court deadline expired for parliament to enact legislation to implement the constitutionally mandated two-thirds gender principle (see section 3). In 2017 a second High Court-ordered deadline for implementation expired, despite a promise by the National Assembly majority leader to bring it to a vote. The order remained under parliamentary review at year’s end. In May the High Court issued a ruling quashing the privileges of parliament that had insulated against legal redress on any decisions parliamentarians make. In June parliament slashed the judiciary budget allocation for the 2018-19 financial year in a perceived retaliatory move.

The law provides for “kadhi” courts, which adjudicate Muslim law on marriage, divorce, and inheritance among Muslims. There were no other traditional courts. The national courts used the traditional law of an ethnic group as a guide in personal matters as long as it did not conflict with statutory law.

TRIAL PROCEDURES

The law provides for the right to a fair public trial, although individuals may give some testimony in closed session; the independent judiciary generally enforced this right. The law provides for a presumption of innocence, and defendants have the right to attend their trials, confront witnesses, and present witnesses and evidence in their defense. The law also provides defendants the right to receive prompt and detailed information on the charges against them, with free interpretation if necessary, including during trials; to be tried without undue delay; to have access to government-held evidence; and not to be compelled to testify or confess guilt. Authorities generally respected these rights, although they did not always promptly inform persons of the charges against them. During the year the judiciary completed disseminating Active Case Management Guidelines to several courts involved in a management pilot project. The judiciary implemented the pilot project in some high profile and complex cases, but had not done so on a regular basis. In January Chief Justice David Maraga launched the National Committee on Criminal Justice Reforms to coordinate justice sector reform. On September 22, Maraga inaugurated the Criminal Procedure Bench Book as part of ongoing judicial reforms.

Trial delays sometimes resulted because witnesses failed to present themselves, judges cancelled trial dates without notice, witnesses were not protected, or legal counsel failed to appear. Authorities generally respected a defendant’s right to consult with an attorney in a timely manner. Defendants generally had adequate time to prepare a defense if they were capable of doing so. The government and courts generally respected these rights. There was no government-sponsored public defenders service, and courts continued to try the vast majority of defendants without representation because they could not afford legal counsel.

In May, 2,000 inmates at a regional prison declined to appear in court over processing and conclusion of their court cases. The inmates accused the justice system of detaining them without trial. The judiciary resolved the matter after three weeks by rotating additional judges to the court.

The Legal Aid Act enacted in 2016 established the National Legal Aid Service to facilitate access to justice, with the ultimate goal of providing pro-bono services for indigent defendants who cannot afford legal representation. Other pro-bono legal aid was available only in major cities where some human rights organizations, notably the Federation of Women Lawyers, an international NGO, provided it. The Law Society of Kenya (LSK) held the annual legal awareness week in September with the theme “Corruption: a crime against justice, democracy, development and prosperity.” During the week, LSK provided free legal aid at all High Courts nation-wide.

The ODPP significantly increased the number of trained prosecutors during the year. According to the ODPP, as of June 29, there were an estimated 627 state prosecutors, compared with 200 in 2013, as well as 402 support staff. The expansion of the prosecution service reduced delays in court proceedings. The ODPP suffered high staff turnover, largely due to the judiciary offering better pay. To fill the gap, the office increased recruiting efforts and brought in more than 90 new prosecutors during the year.

Discovery laws are not clearly defined, handicapping defense lawyers. Implementation of a High Court ruling requiring provision of written statements to the defense before trial remained inconsistent. Defense lawyers often did not have access to government-held evidence before a trial. There were reports the government sometimes invoked the Official Secrets Act as a basis for withholding evidence.

Defendants may appeal a verdict to a High Court and ultimately to the Court of Appeal and, for some matters, to the Supreme Court.

POLITICAL PRISONERS AND DETAINEES

While generally not an issue, there was one report of a political prisoner or detainee. Authorities detained opposition lawyer Miguna Miguna for several days following the January 30 ceremony swearing in Raila Odinga as “the people’s president.” Authorities failed to comply with a court order to produce Miguna and instead deported him, claiming that he had given up his Kenyan citizenship upon obtaining Canadian citizenship (see section 1.d).

CIVIL JUDICIAL PROCEDURES AND REMEDIES

Individuals may use the civil court system to seek damages for violations of human rights and may appeal decisions to the Supreme Court as well as to the African Court of Justice and Human Rights. In 2016 the judiciary launched a program of Enhanced Service Delivery Initiatives to promote more efficient and affordable justice. The program introduced Performance Management Understandings as a method for measuring the performance of judicial staff, judges, and magistrates by work delivery. In 2017 Supreme Court Chief Justice Maraga launched a strategic blueprint for judicial reform, which included an Implementation and Monitoring Committee. In September the ODPP set up a task force to review the national prosecution policy and other guidelines. The task force was expected to develop guidelines on alternatives to prosecution, formulate ODPP charge sheet formats and information, develop standard guidelines on preparation of case files, and develop rules on the operationalization of a central intake of cases.

According to human rights NGOs, bribes, extortion, and political considerations influenced the outcomes in some civil cases. Court fees for filing and hearing civil cases effectively barred some from access to the courts.

PROPERTY RESTITUTION

There is no single established system of land tenure in the country: private titles compete with customary land rights and community land, while public land is vulnerable to squatters or to unscrupulous developers. There is no clear legal framework for issuing title deeds or for adjudicating land disputes because of legal disputes between the National Land Commission, vested with powers of land adjudication through the constitution and 2012 implementing legislation, and the Ministry of Lands. Plots of land were sometimes allocated twice. The Community Land Act signed into law in 2016 allows communities to apply for land registrations as a single entity and put in train the adjudication process in which their applications will be considered alongside any competing claims. In June the government launched its first National Land Use Policy, calling for the issuance of titles based on approved physical development plans.

A report by the Truth, Justice, and Reconciliation Commission (TJRC) established in the aftermath of the 2007-08 postelection violence identified land reform, including titling, as a key issue, and issued recommendations, which were largely not implemented. NGOs and media reported progress had been uneven. For example, according to the daily Standard newspaper, in January 2017 a branch of the High Court ruled that more than three million land title deeds issued by the government since 2013 had been irregularly processed and were therefore invalid, but could be corrected. The judgment was based on the parliament’s failure to approve regulations required to implement the Land Registration Act.

There is no established system for restitution or compensation for those declared to be squatters and ordered to vacate land. Both private and communal clashes were common because of land disputes. The government used forced eviction and demolition to restore what it claimed was illegally occupied public land. For example, in July authorities demolished buildings in the Nairobi informal settlement Kibera, including seven schools, and the residences of more than 10,000 persons. Despite promises to complete a resettlement plan and restitution manifest prior to the demolition, authorities failed to do so.

Evictions also continued in the Mau forest in southwest Kenya. In July authorities forcefully evicted approximately 2,000 persons considered squatters without legal right to live on public land. This led to increased intercommunity clashes in the area in August and September.

In May 2017 the African Union Court on Human and Peoples’ Rights found in favor of the indigenous Ogiek community evicted in 2009 from the Mau Forest. The court ruled the government’s actions had violated seven articles of the African Charter on Human and People’s Rights, to which the country is a signatory. The ruling gave the government until November 2017 to implement the required remedies, but at year’s end, the attorney general had taken no action.

The constitution and law prohibit such actions, except “to promote public benefit,” but authorities sometimes infringed on citizens’ privacy rights. The law permits police to enter a home without a search warrant if the time required to obtain a warrant would prejudice an investigation. Although security officers generally obtained search warrants, they occasionally conducted searches without warrants in the course of large-scale security sweeps to apprehend suspected criminals or to seize property believed stolen. For example, in August 2017, according to multiple press and NGO reports, police conducted house-to-house operations in Kisumu County in connection with protests in the wake of the August 2017 election. In one of the homes, police allegedly beat a husband, wife, and their six-month-old daughter (known as “Baby Pendo”). KNCHR confirmed the infant died of her injuries in September 2017. In November 2017 IPOA completed its investigation into the infant’s death and referred the case to the ODPP for potential prosecution. ODPP declined to prosecute due to lack of evidence identifying the culpable officers. IPOA then referred the case to a magistrate for a public inquest, which met several times, most recently on July 11.

Human rights organizations reported police officers raided homes in informal settlements in Nairobi and communities in the coast region in search of suspected terrorists and weapons. The organizations documented numerous cases in which plainclothes police officers searched residences without a warrant and household goods were confiscated when residents were unable to provide receipts of purchase on demand.

There were no reports that the government or its agents committed arbitrary or unlawful killings.

There were no reports of disappearances by or on behalf of government authorities.

The constitution and laws prohibit such practices. There were reports of police mistreatment; courts dismissed some of the reports. According to the nongovernmental organization (NGO) Coordinator for the Prevention of Torture, in 2017, 1,014 persons were reportedly mistreated in custody and during police operations. In 2016, according to the NGO, 259 persons were reported mistreated. The increase was related to clashes between security forces and persons assembled to vote during the referendum on independence that took place in Catalonia in October 2017 and which the country’s Supreme Court determined was unconstitutional.

In November 2017 the Committee for the Prevention of Torture (CPT) of the Council of Europe (COE) reported receiving some credible allegations of excessive use of force upon detention and of physical mistreatment by police upon arrival at a detention center. In addition the CPT reported “a few allegations” of excessively tight handcuffing. The CPT criticized the practice of restraining inmates, including juveniles, in prisons for periods up to days without adequate supervision and recordkeeping. The CPT also found that in some prisons, inmates, including juveniles, were subjected to excessive solitary confinement.

On February 13, the European Court of Human Rights (ECHR) ordered the government to compensate Igor Portu and Martin Sarasola, members of the Basque terrorist group Fatherland and Liberty (ETA), with 30,000 and 20,000 euros ($34,500 and $23,000) respectively for “inhumane and degrading treatment” suffered following their arrest in 2008. The Ministry of Justice ruled that this amount would be deducted from the amount the two individuals owed to victims of ETA terrorist attacks.

Prison and Detention Center Conditions

There were no significant reports regarding prison or detention center conditions that raised human rights concerns.

The UN Committee for the Prevention of Torture, NGOs, the national police union, and an association of judges criticized Internment Centers for Foreigners (CIEs) for a variety of reasons, including alleged violation of human rights, overcrowding, prison-like treatment, and a lack of interpreters. The law sets the maximum time for detainees in CIEs at 60 days.

Physical Conditions: There were no major concerns in prisons and detention centers regarding physical conditions, although several organizations alleged that overcrowding was a problem in some CIEs. In November 2017 the CPT reported several inspected detention cells were overcrowded. Poor ventilation remained a problem in most establishments visited. In some cells there was dim lighting, and no natural light in any of the cells the delegation visited.

Independent Monitoring: The government generally permitted monitoring by independent nongovernmental observers, including the Coordinator for the Prevention of Torture and the Subcommittee on Torture of the UN Human Rights Committee, in accordance with their standard operating procedures. On September 6-13, a delegation from the CPT visited detention centers and prisons in Catalonia to investigate conditions there. The report of the visit was not yet public at year’s end.

Improvements: According to the Spanish Red Cross and the Office of the UN High Commissioner for Refugees (UNHCR), detention center conditions improved after the government created new migrant reception centers, termed CATE (Center for Temporary Assistance to Foreigners) and CAED (Assistance, Emergency and Referral Centers). The CATEs expanded initial reception facilities available for incoming migrants, and offered more secure facilities and increased access to resources, such as medical assistance. In July the government created CAEDs to receive migrants after the initial 72-hour registration period. The Red Cross and the Spanish Commission for Refugees (CEAR) manage the CAEDs. The Red Cross, UNHCR, and CEAR report that the new facilities allowed migrants greater opportunity to appeal for assistance as victims of trafficking or to apply for asylum.

d. Arbitrary Arrest or Detention

The constitution and law prohibit arbitrary arrest and detention and provide for the right of any person to challenge the lawfulness of his or her arrest or detention in court, and the government generally observed these requirements.

ROLE OF THE POLICE AND SECURITY APPARATUS

Police forces include the national police and the paramilitary Civil Guard, both of which handle migration and border enforcement under the authority of the national Ministry of the Interior, as well as regional police under the authority of the Catalan and the Basque Country regional governments.

Civilian authorities maintained effective control over all police forces and the Civil Guard, and the government generally has effective mechanisms to investigate and punish abuse. There were no reports of impunity involving the security forces.

The constitution provides for an ombudsman to investigate claims of police abuse. In 2017 the ombudsman did not receive any complaints for police mistreatment. These figures represented a decrease in the number of cases of police abuse reported in prior years. In 2017, however, the ombudsman’s office opened 157 official investigations in its role as the National Mechanism for the Prevention of Torture.

In May, Amnesty International alleged that the public prosecutor’s office and Ministry of the Interior were “not fulfilling [their] obligation to pursue investigations” related to the use of excessive force by security forces during the October 2017 referendum on independence in Catalonia that the Supreme Court had ruled unconstitutional.

ARREST PROCEDURES AND TREATMENT OF DETAINEES

The law permits police to apprehend suspects for probable cause or with a warrant based on sufficient evidence as determined by a judge. With certain exceptions police may not hold a suspect for more than 72 hours without a hearing. In certain rare instances involving acts of terrorism, the law allows authorities, with the authorization of a judge, to detain persons for up to five days prior to arraignment. These rights were respected. Authorities generally informed detainees promptly of the charges against them. The country has a functioning bail system, and the courts released defendants on bail unless they believed the defendants might flee or be a threat to public safety. If a potential criminal sentence is less than three years, the judge may decide to impose bail or release the accused on his own recognizance. If the potential sentence is more than three years, the judge must set bail. The law provides detainees the right to consult a lawyer of their choice. If the detainee is indigent, the government appoints legal counsel.

In certain rare instances involving acts of terrorism, a judge may order incommunicado or solitary detention for the entire duration of police custody. The law stipulates that terrorism suspects held incommunicado have the right to an attorney and medical care, but it allows them neither to choose an attorney nor to see a physician of their choice. The court-appointed lawyer is present during police and judicial proceedings, but detainees do not have the right to confer in private with the lawyer. The government continued to conduct extensive video surveillance in detention facilities and interrogation rooms ostensibly to deter mistreatment or any violations of prisoner rights by police or guards.

The constitution provides for an independent judiciary, and the government generally respected judicial independence and impartiality.

TRIAL PROCEDURES

The constitution and law provide for the right to a fair and public trial, and the independent judiciary generally enforced this right. Defendants enjoy a presumption of innocence, the right to be informed promptly and in detail of the charges against them, the right to a fair and public trial without undue delay, and the right to be present at their trial. Defendants have the right to an attorney of their choice. If the defendant is indigent, the government provides an attorney. Defendants and their attorneys have adequate time and facilities to prepare a defense. The government provides free interpretation as necessary from the moment the defendant is charged through all appeals. During the trial defendants may confront prosecution or plaintiff witnesses, and present their own witnesses and evidence. Defendants may not be compelled to testify or confess guilt, and they have the right of appeal.

POLITICAL PRISONERS AND DETAINEES

Officials representing Catalan national political parties alleged that several party members under pretrial detention resulting from the October 2017 “referendum” on Catalan independence, declared unconstitutional by the Supreme Court, were “political prisoners.” Neither the government nor any international human rights NGOs supported this claim. Nine members of proindependence Catalan political parties and civil society organizations were in pretrial detention since late 2017 on criminal charges of rebellion, sedition, or embezzlement of public funds.

Although Amnesty International did not take a position on their claims to be considered “political prisoners,” the organization stated “The use of pretrial detention is justified only where there is no alternative measure…and should be subject to regular review by the courts.” In October the organization asked for the immediate release of NGO leaders Jordi Sanchez and Jordi Cuixart, given their status as civil society leaders, stating, “their ongoing detention represents a disproportionate restriction of their rights to freedom of expression and peaceful assembly.”

CIVIL JUDICIAL PROCEDURES AND REMEDIES

Individuals or organizations may bring civil lawsuits seeking damages for a human rights violation. The complainant may also pursue an administrative resolution. Persons may appeal court decisions involving alleged violations of the European Convention on Human Rights to the ECHR after they exhaust all avenues of appeal in national courts.

PROPERTY RESTITUTION

Having endorsed the 2009 Terezin Declaration, the government acknowledges the right to restitution and/or compensation for victims of Holocaust-related confiscations of property. The local NGO Federation of Jewish Communities of Spain reported that there are no existing or prior cases of compensation or restitution in Spain stemming from the Holocaust.

The constitution prohibits such actions, and there were no reports that the government failed to respect these prohibitions.