Chapter 7
Covert Surveillance Measures
Legitimacy of Covert Surveillance Measures
Article 112:
(1) Covert Surveillance measures could be applied to detect crimes stipulated in article 113 of this law and to collect evidence.
(2) Covert Surveillance measures are as follows:
1– Listening (wiretap), inspecting, or taping the suspect’s and the accused person’s conversations made through phone, computer, internet and other communication and information technology equipment and collecting information about location, sources, distance, route, time, date, amount, and length of conversation and type of communication.
2– Covert electronic surveillance or recording conversations and activities of individuals in private houses and residences and public spaces.
3– Inspecting financial transactions which take place in banks or other financial and business institutions.
4– Inspecting the official letters, packages, containers and parcels including inspecting the material and technical tools.
5– Allowing the transfer and transit (controlled delivery) of illegal or suspected consignments from Afghanistan territory to one or more countries, with knowledge and under supervision of relevant judicial authorities.
Crime Requiring Covert Surveillance Measures:
Article 113
Covert surveillance measures may be taken against the suspect or accused person of the following crimes:
1– Crimes related to terrorism, money laundering and financing terrorism.
2– Crimes stipulated in the law against internal and external security.
3– Crimes related to drugs and intoxicants.
4– Corruption crimes.
5– Kidnapping and human trafficking crimes.
6– Murder crimes.
7– Crimes related to threatening of the witness, judges and prosecutors and family members of each of them under their investigation when committed for the purpose of preventing application of justice.
8– Crimes stipulated in Statute of the International Criminal Court and Final Document of Rome Diplomatic Conference.
Conditions for Taking Covert Surveillance Actions:
Article 114
Secret surveillance measures can only be taken by the request of a prosecutor and authorization of a court in the following circumstances:
1– When the person is a suspect or accused person of committing one of the crimes set forth in article 113 of this law or is an accomplice in the crime.
2– When collecting the required evidence is not readily obtainable by other means or using other approaches may cause problems.
3– When a person provides the suspect or accused person with information technology and/or communication equipment with the knowledge that the suspect or accused person uses the equipment in crimes stated in article 113 of this law.
4– When a person provides a suspect or accused person with the information related to crime.
Contents of Taking Covert Surveillance Measures and Non-Disclosure
Article 115:
(1) The judicial officer is obliged to obtain permission from an authorized court through relevant prosecutor for application of covert surveillance actions. The request shall be in writing including the following:
1– Complete personal information of the target person.
2– Type of crime.
3– Type of covert surveillance action.
4– Good causes for application of covert surveillance measures.
5– Time of initiation and period required for application.
(2) The court shall issue an order authorizing the covert surveillance if the conditions in paragraph (1) are met otherwise the court shall reject the request stating the reasons for doing so.
(3) If the required conditions based on which surveillance actions were taken changes or is eliminated, the court that issued the ruling may amend or dissolve it.
(4) In cases indicated in paragraph (3) of this article the judicial officer is obliged to inform the relevant prosecution office immediately and the prosecution office shall inform the court in writing about the changed conditions.
(5) An order issued in accordance with provisions of this chapter may direct any real or legal person to use or permit the use of covert surveillance measures to monitor and record communications and activities of the persons named in the order.
(6) A person subject to an order described in paragraph (1) shall not disclose the existence of the order or ongoing covert surveillance to any person other than its legal counsel without the permission of the court.
Time Period for Covert Surveillance Actions
Article 116:
(1) The time period for surveillance actions shall be(90) days and may be extended if needed.
(2) Surveillance actions shall be carried out only during detection and investigation proceedings.
(3) The judicial officer shall report on improvements and results achieved in covert surveillance activities every 30 days to the prosecution office. The prosecution office shall report those activities to the court.
(4) In case of need for extension of covert surveillance actions order, the results achieved from carried out surveillance actions or the reasons for not achieving the intended results shall be included in the request for extension.
Listening and Inspection of Conversations and Communications
Article 117:
The judicial officer will listen only to conversations with criminal contents. Whenever parties start other than criminal conversation the judicial officer is obliged to stop listening to the conversation.
Maintaining Documents of the Communication
Article 118:
The documents related to the conversations or communications shall be sealed and locked in a proper case and within 30 days after completion of inspection and listening period shall be handed over to the court that had issued the communication inspection and listening order in order to protect it from theft, demolition and to prevent its illegal disclosure.
