KABUL APPEALS COURT: 20 YEARS IN DARI KORAN CASE

UNCLAS SECTION 01 OF 02 KABUL 000361 SIPDIS SENSITIVE E.O. 12958: N/A TAGS: KPOL PREL PHUM AF SUBJECT: KABUL APPEALS COURT: 20 YEARS IN DARI KORAN CASE REF: A. KABUL209 ¶B. 08KABUL2833 ¶1. (SBU) Summary. On February 15 an Afghan appellate court ordered 20-year prison sentences for Ghous Zalmai and Mullah Qari Mushtaq in connection with their publication and distribution of a Dari language Koran. (Reftel A) This decision affirmed the primary court's September 2008 order. Zalmai and Mushtaq immediately appealed to the Afghan Supreme Court, which has five months to decide the case. Human rights actors widely but privately condemned the decision and are strategizing over how best to respond. -------------- The Judge's Justification -------------- ¶2. (SBU) The judge anchored his decision on Article 130 of the Afghan Constitution which states, "if there is no provision in the Constitution or other laws about a case, the Courts shall, in pursuance of Hanafi jurisprudence, and, within the limits set by this Constitution, rule in the way that obtains justice in the best manner." Thus, the judge did not identify a specific crime the two had committed under the Afghan penal code. In his summation of the case, the judge stated Zalmai and Mushtaq erred by publishing the book without accompanying Arabic verses and by using allegedly irreverent language in Zalmai's one page introduction to the book. The judge did not identify or allege errors in the Dari translation. He spoke for about 30 minutes in his condemnation of Zalmai and Mushtaq, at one point quoting from a Pakistani legal text, stating "those who commit this type of act shall be treated, if crazy, and shall be killed, if not crazy." ¶3. (SBU) The verdict against Zalmai and Mushtaq was not a surprise. The judge, Salaam Qazizada, sentenced Sayad Perwiz Kambakhsh to 20-years' imprisonment for allegedly downloading and distributing an article on women's rights in Islam. (Reftel B) Zalmai's attorney told poloff the decision was anticipated and characterized the proceeding as solely political. -------------- Procedural Flaws -------------- ¶4. (SBU) The Afghan Independent Human Rights Commission (AIHRC) and Norwegian poloff identified several flaws with the proceeding: the judge did not allow defense lawyers to call witnesses or question prosecution witnesses; the judge ignored the defense lawyer's argument that the two did not translate the book, but rather only financed its publication and distributed it; the 20-year sentence is arbitrary and not based on any provision of the Afghan penal code; there was no clear application of Sharia law in that the judge did not consider the defendants' apologies (a widely understood principle of Sharia law is that those who apologize must be forgiven); there was no systematic use of witnesses; and there was evidence of political pressure. ¶5. (SBU) Poloff identified several other procedural problems relating to the 2/15 testimony of two prosecution witnesses. An associate judge read the witnesses' statements, but did not permit the defense lawyers to question the witnesses. The witnesses' statements were suspiciously identical in content and phrasing. Third, the judge identified a contradiction between Zalmai's and Mushtaq's testimony: Zalmai claimed Mushtaq reviewed and approved the text before it was published; Mushtaq denied he had done so. However, the judge did not resolve this contraction, but simply flagged it as a difference. Finally, the judge behaved as if he were the prosecutor throughout the hearings, showing a clear assumption of the defendants' guilt. -------------- Next Steps -------------- ¶6. (SBU) AIHRC assigned a team of three lawyers to analyze the case's history, identify procedural flaws, and compare the judge's basis for decision with established Sharia law. AIHRC will forward the results in a letter to the Chief Justice of the Supreme Court, President Karzai, and the media. AIHRC also plans to organize radio and television programs with sympathetic religious leaders and AIHRC representatives to elaborate on the legal irregularities and raise public awareness of the true facts of the case. ¶7. (SBU) The Europeans are developing a strategy and have organized several meetings to identify an appropriate KABUL 00000361 002 OF 002 response. A public statement is unlikely as AIHRC has warned them it would negatively affect the chances of success in the Supreme Court. Zalmai's brothers asked poloff for Embassy assistance in raising the case with the government. Without additional international pressure, Zalmai will never receive a fair hearing, his brothers argued. WOOD