Arbitrary Justice

Appendices

ANA    Afghan National Army

ANDF  Afghan National Detention Facility

ANP    Afghan National Police

ARB    Administrative Review Board

BAF     Bagram Air Field

BITF    Bagram Theater Internment Facility

CAT     Convention against Torture

CCCI    Central Criminal Court of Iraq

CSRT   Combatant Status Review Tribunal

DOD    Department of Defense

ECRB  Enemy Combatant Review Board

EC       Enemy CombatantI

CRC    International Committee of the Red Cross

ICCPR International Covenant of Civil and Political RightsI

CPC    2004 Interim Criminal Procedure Code for Courts

MOD    Afghan Ministry of Defense

MOJ    Afghan Ministry of Justice

NDS    National Directorate of Security

ROI      Report of Investigation

UNAMA  United Nations Assistance Mission in Afghanistan

Democratic Republic of Afghanistan Ministry of Justice Official Gazette Volume 14 Mizan 30

Decree of the Presidium of the Revolutionary Council of the Democratic Republic of Afghanistan Kabul, No. 153

Regarding ratification of Law of Crimes Against the Internal and External Security of DRA.

The Presidium of the Revolutionary Council of Democratic Republic of Afghanistan approves the criminal provisions relating to crimes against internal and external security for consolidation of legality and better organization based on article (44) of the fundamental principals of DRA.

Article 1

The Law of Crimes Against Internal and External Security of DRA is ratified in two chapters and 30 articles.

Article 2

With the exception of article 25 and 26, investigation of crimes included in this law shall be implemented through the investigating organs of the Ministry of State Security.

Investigation of crimes in article 1 of this law with regard to ratification of the law of military crimes shall be carried out by the relevant organs within the limits of Article 2 of decree No.177 dated 9/11/1362 of the Presidium of the Revolutionary Council of Afghanistan.

Article 3

The Ministry of Justice of DRA together with the Ministry of State Security and other organs for protection of law shall prepare within one month a draft amendment to the law for discovery and investigation of crimes, and overseeing of its implementation by the attorney general office, in accordance with this law and send it for ratification to the Presidium of the Revolutionary Council.

Article 4

The Ministry of Justice of DRA prepares within fifteen days list of the criminal law provisions, which are to be annulled with the effective date of this law, and present it to the Presidium of the Revolutionary Council of DRA.

Article 5

This decree together with the law of crimes against the internal and external security of the DRA is ratified and comes into effect upon publication in the official gazette.

Haji Mohammad Chamkani in charge of the president of the presidium of the revolutionary council of DRA

Chapter One Crimes Against Internal and External Security of the Democratic Republic of Afghanistan

Article 1: National treason against the country

1. Treason is willful acts committed by a citizen of DRA against public sovereignty, safeguarding, territorial integrity, independence, national security and defense capability of the country as follow:

• Joining the enemy, armed activity against public sovereignty, spying, surrendering forces, turning over weapons, war techniques, fortifications and other facilities used for carrying out war, giving state and military secret information to countries or anti state organizations and or groups.
• Participating in and collaborating with foreign countries or anti state organizations or groups in carrying out hostile acts against DRA.
• Conspiring with the aim of taking over the state power.
• Perpetrator of crime of treason shall be sentenced to life imprisonment or death and confiscation of the property.

2. If a citizen of DRA who has the intention of committing crimes included in this article or forced to commit these crimes, voluntarily informs the state authorities prior to committing the crime and prosecution, shall be exempt from punishment.

Article 2: Espionage

Stealing or collecting and hand over of secret information to foreign state, anti government organization or group or their agents, and collecting and submitting of other information by the order of foreign intelligence organs, which can be used against the DRA, provided that the acts are performed by a foreign citizen and persons without citizenship, carry a sentence of life imprisonment or death and confiscation of the property.

Article 3: Terror

1. A person who kills a government political, social and religious personality representing the government, and ethnic and tribal chiefs in connection with their state or social duties, for purpose of weakening or destroying the public sovereignty, the perpetrator shall be sentenced to life imprisonment or death and confiscation of property.
2. If the person in clause one of this article is put under physical or psychological pressure for the purpose mentioned therein, the perpetrator shall be sentenced to imprisonment from three to ten years.

Article 4:

1. If a person kills representative of a foreign country with the aim of instigating war or convulsion in diplomatic relations of DRA with other countries, the perpetrator shall be sentenced to life imprisonment or death penalty and confiscation of the property.
2. If the representative of a foreign country is put under physical or psychological pressure for the purpose mentioned herein, the perpetrator shall be sentenced to imprisonment from three to ten years.

Article 5: Destruction

1. If a person, with the aim of weakening public power and national economy, destroys institutions, communication lines, means of transport and communications and destroys or damages other government, social, cooperative and common or private properties by explosion or fire, or causes spread of epidemic diseases or mass poisonings, he shall be sentenced to imprisonment from ten to twenty years.
2. If committing of the acts mentioned in clause one of this article results in casualties or permanent disability, or cause substantial economic loss or grave consequences, the perpetrator shall be sentenced to life imprisonment or death penalty.

Article 6: Sabotage

1. If a person who intentionally or unintentionally uses public offices and social or private institutions with the aim of weakening or destroying the state authority, industry, trade, transport, agriculture, animal husbandry, financial order, communication means, or deranges other branches of national economy or activities of government organs, social, cooperative and mixed or private institutions, or prevents their regular activities, shall accordingly be sentenced imprisonment from three to ten years.
2. If committing of the acts result in major loss of national economy, the perpetrator shall be sentenced to long-term imprisonment.

Article 7: Propaganda against the government

1. A person who willfully disseminates false news, speeches, statements and self-interest calumny, or engages in provocative oral and written propaganda by any means, or have such publications in his possession, shall be sentenced to medium-term imprisonment.
2. If the acts mentioned in this article result in disruption of public order in government organs, institutions, public offices or disturb their regular work or ends in destruction, looting or fire, or committing these crimes is the result of contacts and communications or other means with anti government groups or hostile foreign government, the perpetrator shall be sentenced to long- term imprisonment.
3. If committing of the acts under this article lead to public chaos or loss of lives, the perpetrator shall be sentenced to life imprisonment or death.

Article 8: War propaganda

A person who spreads out war propaganda in any form, shall accordingly be sentenced to medium-term imprisonment.

Article 9: Organizational activity against internal and external security

1. A person who organizes, establishes, or administers undercover organization, group or body with the aim of committing crimes contained in chapter one of this law, shall be sentenced to life term imprisonment.
2. A person who becomes member of an organization mentioned in clause one of this article or its branch or subordinate, shall be sentenced to long-term imprisonment.
3. A person who himself or through another person establishes contacts with the branch or subordinate of organizations mentioned in clause one of this article for illegal purposes, or encourages others by intimidation or physical and psychological pressure, shall accordingly be sentenced to long- term imprisonment.

Article 10: Crimes against diplomatic relations of Afghanistan with foreign countries

If a person's action harms mutual relations of Afghanistan with foreign countries one way or another, he shall be sentenced to imprisonment from three to ten years.

If a person's action causes breakdown of diplomatic relations between Afghanistan and other countries, he shall be sentenced to life term imprisonment.

Chapter Two Other crimes against internal and external security

Article 11: Violation of national, religious and racial equality rights

1. A person who engages in propagation to incite hostilities and national differences on racial, religious, ethnic and linguistic grounds, or makes efforts to limit the rights or ensures superiority of citizens based on ethnic, national, racial, religious, and linguistic differences, shall be sentenced to a medium-term imprisonment up to three years.
2. If such actions cause uprising or disorder among people, the perpetrator shall be sentenced to a long-term imprisonment.

Article 12: Command and control of armed forces units

A person who illegally takes over the command of unites of the armed forces and combat air craft with criminal intention, without order of the responsible authorities and legitimate cause, or continues his action disregarding the order of the state to disengage, or keeps the soldiers assembled despite receiving order for laying down the weapons, shall be sentenced to life imprisonment or death penalty.

Article 13: Disclosing state secrets

A person who divulges the entrusted job related state secrets, or becomes aware of the secrets in the course of performing his duties without intention of treachery against the country, shall be sentenced to medium-term imprisonment.

If the action mentioned in part (1) of this clause has grave economic, political and military consequences for the Democratic Republic of Afghanistan, the person shall be sentenced to long-term imprisonment.

Article 14: Lost of documents containing governmental secrets

1. A person who loses secret government documents or materials handed over to him in connection with performing his duty, disregarding the regulations for keeping and preserving such documents, shall accordingly be sentenced to a medium-term imprisonment.
2. If the crime mentioned in part (1) of this clause causes grave consequences, the perpetrator shall be sentenced to long-term imprisonment.

Article 15: Armed robbery (Banditry)

The perpetrator of organizing armed robbery directed at the state offices, social institutions, economic institutions of joint stock, joint venture, cooperative nature and private personal offices constituted as banditry, shall be sentenced to long-term imprisonment.

Article 16: Taking hostage

1. If a person by use of threat, force or other means takes another person hostage shall be sentenced to long-term imprisonment and becomes liable for return of the same property, value or profit received thereof.
2. If the hostage is wounded, disabled or killed, the perpetrator shall be sentenced to long-term imprisonment and becomes liable for return of the same property, value or profit received thereof.

Article 17: Violation of international Flights

If entry or exit from airspace of the Democratic Republic of Afghanistan takes place without official permit, and non-observance of the authorized routes, landing airways, flight altitude or other violation of international flights, the perpetrator shall be sentenced to medium-term imprisonment.

Article 18: Illegal occupation of public institutions

A person who by using force occupies state buildings, institutions and other places built for public use, shall he sentenced to long-term or lifetime imprisonment.

Article 19: Counterfeiting and circulation of money and bonds

1. A person who counterfeits in any form the local currency and shareholder stocks in Afghanistan or foreign currencies, shall be sentenced to life-term imprisonment.
2. A person who knowingly circulates forged money and shareholder stocks or transacts, or has them in possession with the intention of circulation and dealings shall be sentenced to long-term imprisonment not exceeding ten years.
3. A person who knowingly brings into or sends out of Afghanistan forged money and shareholder stocks either himself or through another person, shall be sentenced to long-term imprisonment.
4. A person who makes, uses, sells, supplies or leases equipment and facilities used for forging money and shareholder stocks or have them in his possession, shall be sentenced to long-term imprisonment not less than ten years.

Article 20: Fundraising and assistance to anti state organization

A person who himself or through another person receives one way or another sums of money or any kind of benefit or material assistance from internal or external resources for committing crimes provided for in this law, shall accordingly be sentenced to long-term imprisonment.

Article 21: Illegal trade during war

1. If a person during war establishes trade relations personally or through his representative with a foreign government in war with the Democratic Republic of Afghanistan, or with the representative of the said government resided anywhere without consent of the Democratic Republic of Afghanistan, the goods thereof shall be subject to confiscation and he shall be sentenced to long term imprisonment not exceeding ten years.
2. If the subject goods under clause l of article 21 have not been confiscated, the court shall order the payment of its cost.

Article 22: Deferring commitment during war

1. If a person during war fails to perform all or part of his commitment for import and delivery of commodities to the government required by the armed forces or deliberately derange the essential food commodities for people, shall be sentenced to long-term imprisonment.
2. If the above-mentioned crimes lead to weakening the country's defense or operations of the armed forces, the perpetrator shall be sentenced to life imprisonment.
3. If a person during war defers carrying out of his assigned duties, shall be sentenced to medium-term imprisonment.

Article 23 Assisting the enemy forces

If a person for spiritual and material gains for himself or to another person serves the enemy forces directly or indirectly other than the conditions provided for in this law, shall be sentenced to long-term imprisonment not exceeding ten years.

Article 24: Insult the government flag and symbol

A person who publicly insults the flag or the symbol of the government of Afghanistan shall accordingly be sentenced to medium-term imprisonment.

Article 25: Provision and selling of goods for immorality

1. A person who for commercial purpose distributes, leases or supply press, literary work, drawings, slides, clichés, sculptures, portraits and coded signs repugnant to the culture and public manners or procure, import and export or have them in his possession shall accordingly be sentenced to imprisonment from one to three years.
2. In case, the acts stated in clause 1 of this article takes place for the purpose of moral corruption shall accordingly bear an imprisonment sentence from one to five years.

Article 26:  Misuse and steal of cultural and ancient relics

1. Misuse and stealing of ancient cultural and written literary works, and use of publication, portraits, sculptures and other cultural and ancient relics belonging to the public, and also transfer, endowment and lease of them shall require an imprisonment sentence of one to three years.
2. Stealing, selling and causing to sell or intentional destruction of cultural relics shall require long-term imprisonment or compensatory cash penalty of equivalent in value.

Article 27:  Non-reporting of crimes against internal and external security

If a person has reliable information on committing a crime such as act of treason, terror, espionage, obstructionism, war propaganda, organized anti government crimes and banditry and fails to report it to the public authorities shall be sentenced to medium-term imprisonment.

Article 28:  Concealment of anti government and other crimes against national interests

If a person is aware of an anticipated crime such as treason, espionage, terrorism, destruction, obstructionism, organizing anti government crimes, banditry, counterfeiting of money and bonds and conceals it from others, shall be sentenced to medium-term imprisonment.

Article 29:  Exemption from penal responsibility in accordance with this law

1. If a person after committing a crime and prior to legal prosecution provides to the relevant authorities information and full identification of the perpetrators or accomplices or other necessary information relevant to the disclosure of the crime, or introduces the accomplices of similar crimes to the authorities, the court shall observe extenuating circumstances in the case.
2. If a person reports to the relevant authorities before a crime is committed or prior to its completion, the informant shall be exempted from punishment.

Decree of the Executive Body of the Revolutionary Council of the Democratic Republic of Afghanistan

Kabul City No: 158 Dated: 26/05/1366

Regarding the approval of flag and symbol of Air Forces of the Democratic Republic of Afghanistan

In order to develop further and train the Air Forces personnel of the Democratic Republic of Afghanistan for occupational duties and morality amongst the air force personnel of the Democratic Republic of Afghanistan, the executive body of the revolutionary council of the Democratic Republic of Afghanistan approves the following:

3. To ratify the flag and symbol of the air forces of the Democratic Republic of Afghanistan.
4. To ratify the procedure for use of the flag of the Democratic Republic of Afghanistan.

Article 4: Presumption of Innocence

From the moment of the introduction of the penal action until when the criminal responsibility has been assessed by a final decision the person is presumed innocent. Therefore decisions involving deprivations or limitations of human rights must be strictly confined to the need of collecting evidence and establishing the truth.

Article 5: Suspect and Accused

1. A person is considered a suspect when in any deed of the investigations the commission of a crime is attributed to him.
2. A person is considered an accused when an act of indictment has been enacted by the Saranwal according to paragraph 4 of article 39.
3. The quality of accused remains until when the person is discharged or sentenced by a final decision.
4. The suspect and the accused shall not undergo intimidations or any form of physical or psychological pressure.
5. Their statements shall be made in a condition of absolute moral freedom.
6. The suspect and the accused have the right to abstain from making any statement even when they are questioned by the relevant police or judicial authorities.
7. The police, the Saranwal and the Court are duty bound to clearly inform the suspect and the accused before interrogation and at the time of arrest about his or her right to remain silent, right to representation at all times by defense counsel, and right to be present during searches, line-ups, expert examinations and trial.
8. The words or terms "suspect" and "accused" also include in their definition his/her defense counsel.

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Article 19: Legal Aid

1. The suspect or the accused be financially unable to appoint a defense attorney are entitled to have a free defense attorney appointed for him or her in the following manner:

• A. The investigating Saranwal or the Court adjudicating the case, on the petition of the person, appoints a defense attorney for the destitute person from amongst the lawyers officially permitted to work as defense attorney.
• B.  The person for whom an attorney has been appointed reserves the right not to accept the appointed defense attorney and to defend himself in person.
• C.  The fees of the aforesaid attorney shall be paid from the State budget and its extent shall be fixed by regulation.

Article 20: Interpreter

2. The suspect or the accused who does not know the language used during the investigations and the trials or who is deaf, dumb or deaf and dumb shall be given an interpreter for, at least, explaining to him the charge and the indictment and for assisting him during the interrogations and confrontations.

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Article 21: Reporting of Crimes

1. Police are duty bound to report within 24 hours to the Primary Saranwal all the crimes they happen to know.
2. Public officers are duty bound to report crimes ascertained in the performance of their duties.
3. Private citizens are duty bound to report to the judicial police or the Primary Saranwal only crimes against internal and external security.

Article 22: Institution of Proceedings

1. The Primary Saranwal has the obligation to introduce the penal action for prosecution of all crimes, known directly by him or reported to him, committed in the territory of the District, unless otherwise expressly provided by law.
2. The Saranwal shall not dismiss or stay a case except as otherwise provided by the law.

Article 23: Investigations

1. The Primary Saranwal performs the investigation activities by his own or making recourse to the collaboration of the judicial police.
2. The purpose of the criminal investigation is the establishment of the truth and in order to do so the Primary Saranwal shall extend his assessment to cover all facts and evidence relevant for establishing whether the crime has been committed and ascertaining who is responsible for it.
3. In conducting the investigations the Primary Saranwal is duty bound to evaluate incriminating and exonerating circumstances equally and to respect the interest of the victims.

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Article 33: Ratification of the Police's Decisions

1. The Primary Saranwal immediately after having been informed about the judicial police's activities indicated in articles 30, 31 and 32 either sanctions the deeds of the judicial police's activities or adopts decisions to revoke or modify them.
2. Before taking the actions mentioned in the previous paragraph the Saranwal can ask the police to provide explanations.

Article 34: Interrogation of the Person Arrested

1. The Primary Saranwal shall interrogate the person arrested within forty-eight hours from the moment when the person has been put at his disposal.
2. The Primary Saranwal can release the arrested suspect whenever he deems no more necessary the deprivation of liberty.

Article 35: Arrest and Seizures by the Primary Saranwal

1. In the course of the investigations activities the Primary Saranwal can order the arrest of the alleged author of a misdemeanor punishable by medium term imprisonment or felony and seizure of items and goods connected with the crime.
2. The person arrested shall be interrogated within forty-eight hours.

Article 36: Terms for Indictment in Case of Arrest

1. When the arrest performed by the Judicial Police is sanctioned or when the arrest has been ordered by the Saranwal and it remains in force, the arrested person shall be released if the Saranwal has not presented the indictment to the Court within fifteen days from the moment of the arrest except when the Court, at the timely request of the Saranwal, has authorized the extension of the term for not more than fifteen additional days.

Article 37: Collection of Evidence

2. During the investigations phase the Primary Saranwal shall collect all relevant evidence which can substantiate a decision pros or cons the suspect.
3. The collection of evidence is not restricted to particular forms or matters. The Primary Saranwal is free in selecting tools and modalities of proof.
4. The following shall be considered as key tools:
   • A. Witnesses
   • B. Confrontations
   • C. Line up procedures
   • D. Inspections
   • E. Searches
   • F. Seizure
   • G. Expert exams and evaluations
   • H. Interrogations

Article 38: Defense Counsel Presence

1. The defense counsel has the right to be present at all times during the interrogation of the suspect.
2. The suspect and the defense counsel have the right to be present during searches, confrontations, line-up procedures and expert examinations as well as during the trial.
3. In the investigation phase the Saranwal and the judicial police shall notify the suspect and his defense counsel of searches, confrontations, line-up procedures and expert examinations in order to allow them to be present. This duty can be waived only when there is an urgent need to conduct the said operations, which is defined as when it is a flagrante delicto crime or there is a fear of the loss of evidential facts.

Article 39: Conclusion of the Investigation

1. At the conclusion of the investigations phase, if the Primary Saranwal deems that there is not grounded evidence dismisses the case.
2. The victim or higher Saranwal can file a complaint to the Court against this decision within ten days.
3. The Court, after having examined the case, can confirm the decision of the Saranwal or vice versa request him to lodge the indictment.
4. In any other case the Saranwal shall submit to the Court the act of indictment requesting the assessment by trial of the criminal responsibility of the indicted person.
5. The act of indictment is comprised of the following:
6. Complete identification of the suspect;
7. Complete description of the crime.
8. Together with the act of indictment the Primary Saranwal shall transmit to the Court the file containing all the deeds formed during the investigations, putting at the Court's disposal the seized items and goods.

Article 40: Notification on the suspect

1. During the investigations the judicial police and the Saranwal shall give notifications of the deeds to the suspect, to his defense counsel and the victim of the activities to be accomplished, to which they have the right to be present.
2. If there are no particular grounded reasons of urgency, the notification should be served at least three days before the performance of the activity.
3. Reasons of urgency imposing a shorter period or absence of notifications shall be clearly mentioned in the record of the activities.

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Article 42: Preparation of the Trial

1. The Court immediately after having received the act of indictment, orders the notification of the deed indicating the day and hour fixed for the commencement of the trial.
2. The deed shall contain the name of the accused and the indication of the alleged crime with its factual circumstances in reference to the related law provisions and shall be served on the accused and his defense counsel, the victim and the Saranwal at least five days in advance.

Article 43: Access of the Accused to the Findings of the Investigation

1. The accused and his defense counsel are entitled to examine the documents contained in the file mentioned in the last paragraph of article 39 and the objects under seizure.

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Article 49: Attendance of Witnesses and Experts

2. Witnesses and experts are duty bound to be present in the hearing indicated in the notification served on them.
3. If they do not appear without grounded justifications the Court orders their accompaniment by the police imposing on them a fine up to 500 Afghani.

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Article 51: Admission of Witnesses and Experts

1. The Primary Saranwal submits to the Court the list of the witnesses and experts he wants to be heard together with the act of indictment, indicating the reasons of the relevance of their testimony and exams.
2. The accused and/or his defense counsel have the right to present their own lists of witnesses and experts indicating the reasons of the relevance of their testimony and exams.
3. The Court can exclude those witnesses or experts that in its view do not appear material for the adjudication of the case.
4. The Court, on its own initiative, can order the appearance of witnesses or experts who are not included in the above mentioned lists.

Article 52: Order of the Hearing

1. The order of the hearing is explained to the persons present by the Head of the Court.
2. The court keeps the order of the hearing. Hearings are open to the public except when the court decides that all or part of it shall be run without the presence of the public for reasons of morality, family confidentiality or public order.
3. The Primary Saranwal, the accused and his defense counsel have the right to be always present.
4. The accused that with his behavior disrupts the proceedings can be excluded by the Court for part or all the duration of the hearing. He is anyhow readmitted in the room when the verdict is read out.

Article 53: Conduct of the Hearing

1. The Primary Saranwal is duty bound to take part in the hearing.
2. The accused and his defense counsel have the right to be present.
3. The Court proceedings are conducted according to the following order:
4. At the opening of the hearing the Court reads out the act of indictment;
5. When the accused is under detention the Court shall immediately assess the legality of the arrest and order the liberation of the accused when realizes that the arrest was unlawful or not necessary;
6. The Primary Saranwal makes an oral presentation of the case and of the findings of the investigations;
7. The judicial police officers who have conducted the investigations make oral reports of the activities accomplished;
8. The first witness to be heard is the victim;
9. Then the other witnesses and the experts are heard;
10. The accused can testify if he does not avail himself of the right to remain silent and the accused or his defense counsel can ask questions to the witnesses and the experts;
11. In case the witness cannot be present for health reasons the Court can hear him in his domicile;
12. The primary Saranwal and the defense lawyer can ask question to the accused.
13. The Court can, at any time, address questions to the accused, to any witness in the hearing and order confrontations.
14. The accused can refuse to answer the questions of the Court consistent with his right to remain silent.

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Article 55: Evidentiary Value of Investigative Activities

1. The records of the testimonies of the witnesses as well as of the expert exams, collected during the investigative phase, can have the value of evidence as basis for the decision only if it results that the accused and/or his defense counsel were present during the operations and were in a position to raise questions and make objections.
2. Otherwise the related deeds have the sole value of clues.

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Article 58: Conclusion of the Trial

1. At the conclusion of the operations indicated in the previous articles, the Primary Saranwal expresses his opinion requesting the Court to make a decision of dismissal or sentence, indicating the kind and the amount of punishment he deems adequate.
2. The accused or the defense counsel, when present, submits to the Court arguments in rebuttal of the accusation.

Article 59: Decision of the Court

1. At the completion of the activities, the Court declares the closing of the hearing and leaves the trial room for writing down 'in chamber' the decision of the case.
2. Later on, the Court enters the trial room again and reads out the verdict together with its reasons. This reading has the value of notification. If the reasons of the verdict are not read out by the Court in the same context, they shall be deposited in the office of the secretary of the Court within fifteen days from the moment of the decision.
3. The Primary Saranwal, the accused and his defense counsel shall receive notification of the deposit indicated in paragraph 2 of this article.
4. The accused tried in absentia, in the case of article 47, shall receive notification of the decision read out by the Court together with the reasons deposited later on in the office of the secretary of the Court.
5. The notification indicated in the previous paragraph is served on the defense counsel of the accused in the case of article 46.