KOMENTARI ELEKTRONIK
CODE OF CRIMINAL JUSTICE FOR CHILDREN   |   37/2017

Article 10: Principle of the best interest of the child

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1. The best interest of the child shall be a primary consideration by the competent bodies in any decision taken and activity performed under this Code.

2. In implementing this principle, the following shall be considered:

a. needs of the child for physical and psychological development, education and health, security and sustainability and also child upbringing/belonging to a family;

b. views of the child, in accordance with the age and maturity of the child;

c. history of the child, considering the special situations of abuse, neglect, exploitation or other forms of child violence, and the potential risk that similar situations may occur in the future;

ç. capacity of the parents or persons in charge of child upbringing to respond to the needs of the child;

d. continuity of personal relations between the child and the parents, with whom the child has gender, social and/or spiritual relations.

3. Decisions and acts of the competent bodies must contain a special reasoning related to how the best interest of the child is analysed and how it will be ensured.

Table of Content

      1. Article 10 of the CCJC is a part of the articles of Chapter II, where the principles of criminal justice for children are listed. As this article is a part of this chapter, it expands its effects throughout the content of the CCJC. Article 10 treats one of the most important principles, such as the principle of the best interest of the child. Positioning the best interest of the child in the central focus, the legislator does not consider it as an isolated principle, but as a principle closely related with the other criminal rights and guarantees for the child. This principle is guaranteed even by the international legislation and mainly by the Convention for the Rights of the Child [hereinafter referred to as CRC], Article 3 and not only here. Through this article, the purpose of the legislator is to attract the attention of every competent body to consider this principle in all the decisions, acts and actions during the implementation of the CCJC.

       

      1. One of the purposes of Article 10 is to list, just like in paragraph 2 of this article, comprehensively the important aspects or directions that should be considered by the competent bodies for the appropriate implementation of the principle of the best interest of the child in the criminal process. These directions are in harmony with Article 6 of the CCJC, which is an article that highlights the international standards and the applicable legislation, and it is in harmony with the other principles of the CCJC, too. 

       

      1. From the content of paragraph 3 of this article, it is understood that Article 10 has a double purpose. At one hand, it intends to determine the obligation for the competent bodies to include in their acts, decisions and actions a special argumentation on the way how principle of the best interest of the child has been analyzed and concluded. On the other hand, these bodies shall reflect the way how this principle shall be applied concretely, in practice. Article 10 stipulates that every decision-making shall be based on an analysis or argumentation, called “special” by the legislator, due to the importance of this principle, because all the arguments shall be linked with it.
      1. Article 10 is a material provision with a special importance and procedural effect. This is reflected in the three paragraphs of Article 10. The best interest of the child is a fundamental legal principle, a substantial right and a procedural rule which means that it has to be dealt with on a case by case basis every time when a child is concerned, irrelevant of his/her status as defendant, witness or victim. The Article does not provide a definition of the principle of the best interest of the child. Therefore, this article shall be read in connection to Article 3, paragraph 9 of the CCJC, where the definition is provided. The structure of Article 10 helps the competent bodies to implement the principle in every act, decision or action and gives priority to this principle.

       

      1. Paragraph 2 of article 10 provides for a descriptive list of the aspects that shall be considered by the competent bodies in the cases of juvenile justice in their acts, decisions and activities according to Article 3 paragraph 15 of this code.

       

      1. The structure of this article permits the competent bodies to understand, firstly, that the principle of the best interest of the child has priority in the process of criminal justice for children; secondly that there are some important aspects, which shall be taken into consideration in the evaluation of this interest that shall be analyzed. These aspects are listed in letter “a” to “d” of paragraph 2 of this article; thirdly, the decisions and the acts of the competent bodies shall have two parts closely connected to each other. The first part explains clearly, simply and in details the analysis used for decision-making or rendering an act by whichever competent body; and the second part reflects the way/steps to be followed by the responsible people, etc., for the implementation of this principle. Article 10 clarifies that only in this way the principle of the best interest of the child can become a reality.
      1. The phrase “to evaluate with priority the best interest of the child” used in paragraph 1 of Article 10 underlines the priority of the principle. The legislator has not given a definition of “priority” and how it is realized. In order to clarify this, we refer to Article 3 paragraph 9 of the CCJC which provides the definition of “the best interest of the child”. This article provides for the right of the child to have a healthy physical, mental, moral, spiritual, social development and to enjoy an appropriate family and social life. All these aspects in a cumulative way and analyzed separately compose the best interest of the child. Therefore, as the decision-making impacts on these aspects, it should be considered if it is in contradiction or if it helps to comply with this principle.

       

      1. The phrase “with priority” is commented even by the Committee for the Rights of the Child in the General Comment No. 14 (2013). According to this comment in paragraphs 36 to 40, the competent bodies shall understand that “priority” means that the best interest of the child cannot be considered at the same level as other interests or as interests of the others, justified because of the special situation of the child: the lack of independence, maturity, legal status and, often, the failure to enforce the right to be heard. Children have fewer opportunities than the adults to protect their rights appropriately. Article 10 of the CCJC is addressed to the competent authorities and requires that everyone who is included in the decisions that impact the child shall be aware of the interests of the children. A professional and multidisciplinary approach is necessary to evaluate with priority the “best interest”. This is the reason why the CCJC provides for in a special chapter [Chapter IV, articles 25-32] the treatment and the professional specialization as guarantee for the implementation of the principle of the best interest of the child. If the interests of the children are not highlighted, they tend to be neglected and to weaken.

       

      1. After the best interest of the child is evaluated and determined, it may happen that this interest is in conflict with interests of other children, of other adults, etc. The potential conflicts between the interest of the child and the interests of a group of children or the conflicts with the interests of another child shall be solved case after case balancing carefully the interests of everyone, when they are children and finding the appropriate compromise. The same shall be done if the rights of others, of subjects who are not children, are in conflict with the best interests of the child. If the harmonization is not possible, the competent bodies shall analyze and weigh the rights of everyone taking into consideration the right of the child to realize the best interest, as a consideration of priority. This means that the interest of the child has a high priority and it is not just one of some of the considerations. Therefore, more attentions shall be paid to what serves the best for the child. In every act, decision and action, these interests shall be prioritized in all circumstances, but particularly when a decision has an undeniable impact on the concrete children.

       

      1. The principle of the best interest of the child has been provided for in several international acts related to the rights of children, ratified by the Republic of Albania and they must be observed by the competent bodies which should have this interest in the centre of their attention in all their decisions and activities. This principle is found in Article 3 of the Convention of on the Rights of the Child and Article 24, particularly paragraph 2 of the Charter of Fundamental Rights of the European Union[1], adopted by the European Parliament, Council and Commission. Also, the principle is found in the Convention of the Council of Europe “On the Protection of Children from Sexual Exploitation and Sexual Abuse”. Article 30 of this Convention underlines that “the investigation and the criminal processes are conducted based on the best interest of children and respecting the rights of children”. Also, the Directive (EU) 2016/800 of the European Parliament and of the Council, dated 11th May 2016 “On the protective procedural measures for children who are suspected or accused in the criminal procedure”[2] has a special importance. The Criminal Code of the RoA, Article 1/c [Hyperlink] underlines that one of the principles where the Criminal Code is based on, is the one of the protection of the best interest of the child.

       

      1. The content of the phrase “interest of the child” is complex. This interest may be different in different situations. Therefore, this interest shall be analyzed according to the case and its concrete circumstances. The important issues have to stay in every case. The focus shall be on the prevention of the criminal activity and on the prevention of recidivism; on the (re)socialization and (re)integration of the child in conflict with the law; and to address the needs and the interests of the victims. The interest of the child is related to the the physical, moral and intellectual development of the child; the maturity of the child for the perception of the situation and the solutions he/she expresses according his/her own viewpoint. The enforcement of this principle means that each body is compelled to respect the requests of the procedural and material law and the conclusion of the decision shall be the synthesis of an analysis of all the elements and the factors related to the growth, development, wellbeing, education, schooling and the evaluation of the specialist on the psychological condition of the child. In the decision, every competent body, explicitly, shall reason on every aspect of these considerations and shall choose the most appropriate alternative for the realization of the best interest of the child. Therefore, for example, the application of sanctions or measures is based on the best interest of the child, depending on the violation or the offence that has been committed (principle of proportionality) pursuant to Article 13 of the CCJC considering the age, the physical and mental wellbeing, the development, the capacity and the personal circumstances (the individualization principle), pursuant to Article 22 of the CCJC referring to the psychological, psychiatric or social reports, when necessary.     

       

      1. The best interest of children is one of the principles of the “child-friendly justice” and as such, it shall be the prevailing consideration in all the cases concerning children. The evaluation of the best interest of children included or impacted by the criminal legislation shall take into consideration the fact that child-friendly justice shall be achievable. Therefore, an adapted analysis is necessary, with a focus on the need of the child according to their age. A brief and careful analysis respecting the right for a regular process; respecting the right to participate and to understand the procedures according to Article 16 of the CCJC; respecting the right to private and family life; respecting the right for integrity and dignity. It is very important that the opinions and the thoughts of children receive appropriate attention. All the other rights of children such as the right for dignity, freedom and equal treatment shall be respected every moment. A comprehensive approach shall be adopted by all the competent bodies in order for them to take into consideration all endangered interests, including the psychological, physical wellbeing as well as the legal, economic and social interests of the child.

       

      1. The elements of due legal process, such as the principle of legality and proportionality, of the presumption of innocence, the right for a fair trial, for legal counselling, the right to access justice and appeal shall be guaranteed to children. These rights shall not be minimized or negated because of the pretention of the best interest of the child. On the contrary, his is valid for all the judicial, extrajudicial and administrative procedures. Children shall have the right to access the appropriate mechanisms for complaints, which have to be independent and effective.

       

      1. Article 10 of the CCJC is addressed expressively to all competent bodies provided for in Article 3, paragraph 15 of this Code, that this priority shall be part of all their acts, decisions or action.

       

      1. A list of five main aspects that needs to be considered in implementing the principle of the highest interest of the child is found in paragraph 2 of Article 10. This interest is related to the psychological well-being and physical development of the minor; education and health, pursuant to Article 12 of the CCJC etc. In short, this interest implies all the rights that CRC provides for juvenile (Articles 3, 37, 39 and 40), the CCJC and the legislation in force such as the Law 18/2017 "On the Rights and Protection of Children".

       

      1. Therefore, paragraph 2, letter “a” of Article 10, starts with the words “needs of the child for physical and psychological development, education and health, security and sustainability as well as the child upbringing/belonging to a family”. Children are different from adults in their physical and psychological development and their emotional and educational needs. Such distinctions constitute the basis for the lowest culpability of children in conflict with the law. These and other distinctions are the reasons for a special justice system for children and require a different treatment for children. The protection of the best interest of children is related to the objectives of the rehabilitation and restorative justice for dealing with children. For this reason, according to paragraph 2 letter “a” it is important to know how much the decision impact on the physical and psychological development, on the education and health, security and stability, as well as the upbringing/belonging to a family.

       

      1. Paragraph 2, letter “b” includes the obligation to take into consideration “the opinion of the child, depending on their age and capability to understand”. There are several provisions of the CCJC, which provide for the principle of the participation of the child in the process as provided for in Article 16 of the CCJC. The child shall be given the opportunity to express their perspectives freely and these perspectives shall be given the appropriate importance according to the age and the maturity of the child. This is provided for in Article 12 of the CRC and in the General Comment 12 of the Committee for the Rights of the child (paragraphs 57-64). The evaluation of this maturity is left in the hands of each competent body but especially to the court. This means that in order to participate effectively in the procedure, children shall be informed about the juvenile justice process and about potential measures. The children shall be given the opportunity to express their opinions regarding alternative measures that may be rendered; and appropriate attention shall be given to the wishes or the specific preferences he/she may have. Claiming that the child is criminally liable means that he/she shall be competent and capable of participating effectively in the decisions regarding the most appropriate reply to alleged violations of the criminal law. The child cannot be treated as passive object. If this happens, he/she does not know his rights and does not contribute with actively towards his/her behaviour. The active engagement of the child shall contribute to a positive result.

       

      1. This right according to paragraph 2 letter “b” shall be respected during all phases of the trial: from the preliminary adjudication phase, when the child is entitled to remain silent, to the right to be heard by the police, the prosecutor and the judge. Also, it is applied in the cases of the enforcement of every measure and decision. In case of diversion, including the mediation, a child shall have the opportunity to give the free and voluntary consent, and they shall be given the possibility to receive advice and legal aid, etc., to determine the appropriateness and acceptance of the proposed measure of diversion. In order for each child to participate effectively in the procedure, they shall be informed immediately and directly in a language he or she understands, about the juvenile justice process as well as the potential measures taken by the court. The procedures shall be developed in an atmosphere that makes it possible for the child to participate and to express themselves freely. The adjudication and the other hearings of a child in conflict with the law shall be carried out in camera. The exceptions from this rule are found in the CCJC and are led by the best interest of the child.

       

      1. Paragraph 2, letter “c” provides for “the history of the child, considering the special situations of abuse, neglect, exploitation or other forms of child violence, and the potential risk that similar situations may occur in the future”. This code has given special attention to the child victim or witness as well as to the child in conflict with the law who in a way or another was a victim of abuse, neglect, exploitation or other forms of violence. The CCJC includes special regulations regarding the data system of criminal justice for the child, to coordinate inter alia multi-institutional attempts to provide instant solutions for cases when the child is not permitted to access justice, is a subject of abuses or of violations of the child’s rights or when the procedural guarantees provided for by the legislation in force are not respected.

       

      1. Paragraph 2, letter ”ç” provides for “the capacity of the parents or persons in charge of child upbringing to respond to the needs of the child”. In this code, there are a lot of measures whose enforcement is related to other parents and persons who look after the children. The parent, the relative or the guardian are legal representatives of the child (see article 3, paragraph 16 of the CCJC). Unless a professional evaluation of their parenting capacities is carried out, it is likely that the measure that is taken might stay ineffective. In such cases, the question is: is the parent or the concrete guardian capable of fulfilling the purpose of the concrete measure? Is there a conflict of interest? So, for example article 16 provides for the right to participate in the process and if the child cannot exercise this right, it can be realized through the parent as the legal representative. According to Article 41,the child witness or victim of domestic violence is not permitted to be cross-examined in the presence of the abusing parent or relative during the procedure. A restraining order, an immediate restraining order can be issued. There are cases when the care of the parent or of the guardian of the child in conflict with the law, responsible for their upbringing, behaviour and their personality development, is not sufficient to fulfil the purpose of the binding measures. Is there a solution for such cases? Also, there are cases when the continuous care and supervision is necessary, and this cannot be done by the parent or the guardian. In such cases, the solution is the appointment of a specialized person or service, as the child may be subject of an educative and/or corrective program.

       

      1. Paragraph 2, letter “d” provides for “the continuity of personal relations between the child and the parents, with whom the child has gender, social and/or spiritual relations”. This analysis leads as well to the enforcement of the principle of the best interest of the child. The entire system of criminal justice shall promote the reintegration of the child in conflict with the law and that the child plays a useful role in the society. This cannot be achieved if the child is separated from the family, the relatives and the society. Guaranteeing the re-socialization and the rehabilitation of the child who has committed a criminal offence, shall be the priority of every decision-making body. Every measure shall provide for the mechanisms that guarantee these continuities of healthy relations. Through them, the children understand their responsibilities better, they strengthen the sense of respecting the rights of others; the physical, mental, spiritual, moral and social development of the child is enhanced, and the child is prepared to return to the society. A pre-trial report of the individual evaluation has to recommend appropriate measures to enhance personal relations with the relatives and their integration in the society, and on the other hand the group of persons with whom the child should not be in contact due to their negative influence. Article 120 of the CCJC regulates specifically the contacts and the social environment of the child the intention of the article being the reintegration in society and the reduction of the negative social consequences for the child sentenced to imprisonment and the detained child.       

       

      [1] Article 24, The rights of child: 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

      [2]Access the following link:http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32016L0800

      1. In Albania, the principle of the best interest of the child had no special position in the main principles of the criminal proceeding of the CPC, in force before the amendments of the year 2017. However, we may say that the roots of this principle are found in the Criminal Code and the Criminal Procedure Code expressed in different provisions. For example, Article 35 paragraph 2 of the CPC, provides in relation to the “assistance provided to the child defendant” : “The proceeding authority may carry out actions and draft documents, which require the presence of the minor, in absence of the persons stated in paragraph 1, when this is in the minor’s interest or when the delay may seriously impair the proceeding, provided that it is always done in presence of the lawyer”. Also, Article 103 of the CPC, which treats “Prohibition to publish an act”, paragraph 4 provides for that: “4. It is prohibited to publish personal data and photographs of minor defendants and witnesses, accused or injured by the criminal offence. The court may allow the publication only when the interest of the minor, who has turned sixteen, requires so”. Before the amendments in 2017, the CPC contained some other provisions which directly or indirectly referred to the enforcement of this principle.

       

      1. Regarding the Criminal Code, we may say that this principle is found there after the amendments made in 2013. A new provision was added which is related to the principle of the best interest of the child. This is article 1/c “Principles of the Criminal Code”, which provides: “The Criminal Code is based on the constitutional principles of rule of law, equality under the law, fairness in determining the guilt and sentence, protecting the highest interest of children, and the humanism”.

       

      1. The Report on the Draft-Law “Code of Criminal Justice for Children in the Republic of Albania”[1] underlines the importance that this principle has for this draft-law and the place of the best interest of the child as a principle with crucial importance in criminal justice for children. This report transmits all the international documents with an impact on criminal justice for children and the importance of the best interest of the child.

       

      1. In the document on the Analysis on Justice System, the Group of the High-Level Experts attached to the Special Parliamentary Commission for the Reform in the Justice System has noticed several shortcomings in the criminal justice system related to the child defendants, victims or witnesses.

       

      1. As a conclusion, we can say that with the CCJC and the principles included in it on juvenile justice there is an adequate connection with the international standards for the best interest of the child in conflict with the law, victim and/or witness.

       

      [1] See the document at: https://www.parlament.al/wp-content/uploads-MITURIT-NE-RSH-Resized.pdf.

      1. The main documents used for the perception of the best interest of the child, as it is quoted even in the explanatory report of the CCJC, are:

       

      1. The Convention on for the Rights of the Child treats this principle in several articles, but a special focus on the framework of juvenile justice is contained in article 3, article 12, article 37 letter c; article 40 (2) (b) (iv). None of the articles should be seen in an isolated way. For example: article 40 has an interconnection with articles connected to the general principles of CRC which have become a part of the CCJC article 2: the principle of equality and non discrimination; article 3 on the principle of the best interest; article 6: the right to life and to survival; article 12: the right of the child to be heard in every judicial and administrative procedure, related to him either directly or through a representative or an appropriate body. (the latter only in exceptional circumstances as explained in General Comment 14, art.44 of the Committee of the Rights of the Child)Also, of importance are: article 16: the right to privacy; article 19: protection from all the forms of violence; article 25: periodic review of the measure/treatment; article 37: prohibition of death penalty and life imprisonment, limits in freedom restriction, etc; article 39: rehabilitation of victims.

         

      1. Optional Protocol of the Convention for the Rights of the child regarding the trading of children, prostitution with children and pornography with children, ratified with Law no. 9834, dated 22.11.2007 pays a special attention to this principle in its preamble and article 8[1]. 

       

      1. Optional Protocol of the Convention for the Rights of the child on the procedure of communication pays attention to this principle in its preamble and article 2 and 3. The protocol was ratified with law no. 86/2013[2].

       

      1. Convention of the Council of Europe on the Protection of Children from Sexual Exploitation and Abuse (Lanzarote Convention) ratified with law no. 10 071, dated 9.2.2009, in its preamble underlines that: “the wellbeing and the best interests of children are the fundamental values, shared by all the member states and that shall be promoted without any discrimination”; article 13 paragraph 3, letter “b” underlines that: “the possibility of the victim to leave the premises of his or her family and the conditions and the duration of this move are stipulated in compliance with the best interests of the child”. Article 31 “General measures of protection” is also important.

       

      1. DIRECTIVE (EU) 2016/800 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 May 2016on procedural safeguards for children who are suspects or accused persons in criminal proceedings, whose preamble underlines that: “Where children are suspects or accused persons in criminal proceedings or are subject to European arrest warrant proceedings pursuant to Council Framework Decision 2002/584/JHA(9)(requested persons), Member States should ensure that the child's best interests are always a primary consideration, in accordance with Article 24(2) of the Charter of Fundamental Rights of the European Union (the Charter). Also, this principle is found in articles:  7 regarding the Right to an individual assessment; 9 regarding Audiovisual recording of questioning; 12 regarding Specific treatment in the case of deprivation of liberty; article regarding Right of the child to be accompanied by the holder of parental responsibility during the proceedings.

       

      1. Committee on the Rights of the Child, General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)[3]

       

      1. General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24)[4]

       

      [1]http://differentandequal.org/wp-content/me_femije1.pdf

      [2] http://femijet.gov.al/al/wp-content/uploads/2014/02/Protokolli-Opsional-i-Konventes-per-te-Drejtat-e-femijes-Per-proceduren-e-komunikimit.pdf

      [3]  http://www2.ohchr.org/English/bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf  vizituar për herë të fundit më 03.09. 2017

      [4] Adopted by the Committee at its sixty-second session (14 January – 1 February 2013).

  • Reports, opinions, recommendations and statements

     

    1. UN, Committee on the Rights of the Child (2007), General Comment No. 10 on Children’s rights in juvenile justice, CRC/C/GC/07, 25 April 2007[1].

     

    1. Committee on the Rights of the Child, GENERAL COMMENT No. 5 (2003) General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), last accessed on: 03.09. 2017[2].

     

    1. Resolution nr. 2010 (2014) of the Parliamentary Assembly of the Council of Europe: Child-friendly juvenile justice: from rhetoric to reality[3].

     

    1. Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice[4].

     

    1. Committee of the Ministers of the Council of Europe Recommendation no. CM/Rec(2008)11 for the member states, on the European Rules for juvenile offenders subject to sanctions or measures[5]

     

    Decisions of the European Court of Human Rights 

    1. ECtHR, case PANOVITS against Cyprus, (Application no. 4268/04) from which we are extracting some important paragraphs: 7. In the context of a police investigation concerning a murder and robbery which took place on 19 April 2000, the police contacted the applicant’s father and invited him and the applicant to visit the Limassol police station. At the time the applicant was just over 17 years old. The applicant went to the police station accompanied by his father. The Limassol District Police Director (hereinafter “the Police Director”) informed the applicant’s father, in the presence of the applicant, about the crime that had been committed, the seriousness of the case, and the fact that there was evidence involving the applicant and that an arrest warrant had been issued against him. 8. According to the applicant, he immediately stated that he was innocent. 67. The Court notes that the applicant was 17 years old at the material time. In its case-law on Article 6 the Court has held that when criminal charges are brought against a child, it is essential that he be dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings (see T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999, § 84). The right of an accused minor to effective participation in his or her criminal trial requires that he be dealt with due regard to his vulnerability and capacities from the first stages of his involvement in a criminal investigation and, in particular, during any questioning by the police. The authorities must take steps to reduce as far as possible his feelings of intimidation and inhibition (see,mutatis mutandis, T. v. the United Kingdom, cited above, § 85) and ensure that the accused minor has a broad understanding of the nature of the investigation, of what is at stake for him or her, including the significance of any penalty which may be imposed as well as of his rights of defence and, in particular, of his right to remain silent (mutatis mutandis, S.C. v. the United Kingdom, no. 60958/00, § 29, ECHR 2004-IV). It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said by the arresting officer and during his questioning by the police (ibid).

     

    1. ECtHR, case Adamkieuwicz against Poland: The European Court of Human Rights has developed a broad jurisprudence confirming and strengthening the importance of respecting the specific situation of children. Regarding, juvenile justice, the courts are asked to take into consideration the age of the child, the level of maturity, the intellectual and emotional capacities of the child. This includes the request that the courts shall always promote the ability of the child to participate in the procedure.

     

    1. ECtHR, case Bouamar v. Belgium concerns the placement of a child in a remand prison on nine occasions for periods of around 15 days. The applicant was an adolescent considered to have a disturbed personality and violent behaviour. The Belgian Government submitted that he had been placed in the remand prison for the purpose of educational supervision. The ECtHR noted that interim placements in a remand prison are not in themselves contrary to Article 5 (1) (d), as long as the authorities pursue the purpose of placing the juvenile under educational supervision. However, the ECtHR found that in the applicant’s case the authorities failed to show that they had the intention or possibility to place him in an institution where he could benefit from educational supervision. Consequently, the ECtHR found a violation of Article 5 (1) (d) of the ECHR. 

     

    1. ECtHR, case D.G. v. Ireland concerns the placement of a violent child in a detention centre. The ECtHR held that the notion of ‘educational supervision’ should not be equated strictly with classroom teaching. Educational supervision entails many aspects of the exercise of parental rights by the local authority for the benefit and protection of the person concerned. The ECtHR held that it is permissible for domestic authorities to place juveniles in detention facilities on a temporary basis until suitable accommodation is found, as long as this happens speedily. In the applicant’s case the speediness requirement was not met as he was only placed in a suitable accommodation more than six months after his release from detention. The ECtHR therefore found a violation of Article 5 (1) (d) of the ECHR.

     

    1. ECtHR, case Ali v. the United Kingdom: The applicant was excluded from school during a police investigation into a fire at his school, because he had been in the vicinity at the relevant time. He was offered alternative schooling and, after the criminal proceedings against him were discontinued, his parents were invited to a meeting with the school to discuss his reintegration. They failed to attend and also delayed deciding on whether they wanted him to return to the school. His place was given to another child. The Court noted that the right to education under the Convention comprised access to an educational institution as well as the right to obtain, in conformity with the rules in each State, official recognition of the studies completed. Any restriction imposed on it had to be foreseeable for those concerned and pursue a legitimate aim. At the same time, the right to education did not necessarily entail the right of access to a particular educational institution and it did not in principle exclude disciplinary measures such as suspension or expulsion in order to comply with internal rules. In the instant case, the Court found that the exclusion of the applicant had not amounted to a denial of the right to education. In particular, it had been the result of an ongoing criminal investigation and as such had pursued a legitimate aim. It had also been done in accordance with the 1998 Act and had thus been foreseeable. In addition, the applicant had only been excluded temporarily, until the termination of the criminal investigation. His parents had been invited to a meeting with a view to facilitating his reintegration, yet they had not attended. Had they done so, their son’s reintegration would have been likely. Further, the applicant had been offered alternative education during the exclusion period but did not take up the offer. Accordingly, the Court was satisfied that his exclusion had been proportionate to the legitimate aim pursued and had not interfered with his right to education. There had, therefore, been no violation of Article 2 (right to education) of Protocol No. 1 to the Convention

     

    [1] http://www.refworld.org/docid/4670fca12.html

    [2] http://www.refworld.org/docid/4538834f11.html

    [3]http://semantic-pace.net/tools/pdf.aspx?3Nlb=ZmlsZWlkPTIxMDkw last accessed on 03.09. 2017

    [4] https://rm.coe.int/168045f5a9 last accessed on 03.09. 2017

    [5] https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805d2716 English language version, last accessed on 03.09. 2017

    1. Analysis of the justice system in Albania, June 2015, drafted by the Group of High Level Experts attached to the Special Parliamentary Commission for the Reform in the Justice System, http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, last accessed on 12.07.2017;

     

    1. Report on “Code of criminal justice for the child in the Republic of Albania”, https://www.parlament.al/wp-content/uploads-DREJTESISE-PER-TE-MITURIT-NE-RSH-Resized.pdf, last accessed on 12.08.2017

  • Constitution: 

    Article 54 paragraph 1. Children, the young, pregnant women and new mothers have the right to special protection by the state. 2. Children born out of wedlock have rights equal to those born within marriage. 3. Every child has the right to be protected from violence, ill treatment, exploitation and from performing any work, especially under the minimum age for child labor, which could damage his health and morals or endanger his life or normal development. 

    CCJC: 

    Article 3 paragraph 9

    Article 16 paragraph 4 and 7

    Article 17 paragraph 1

    Article 42 paragraph 3

    Article 48 paragraph 1

    Article 55

    Article 91 paragraph 2 and 4

    Article 94 paragraph 2

    Article 110 paragraph 3

    Article 113 paragraph 5

    Article 120 

    Criminal Code:

    Article 1/c

    Law 18/2017: “On the rights and protection of child”

    Article 6

    Article 62 paragraph 2

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  • Decisions of the Constitutional Court 

    Decision no. 109, dated 11.10.2011 of the Constitutional Court College with the applicant John David Brown, which decides not to transfer the case for review in a plenary session. Subject: Repeal, as incompatible with the Constitution of the RoA, decision no. 1581, dated 19.11.2008 of the Court of Judicial District Tirana, decision no. 858, dated 02.10.2009 of the court of Appeal Tirana and decision no. 00-2011-172, dated 18.02.2011, of the Criminal College of the High Court (Counselling Chamber). Paragraph 9 of the decision reads: “According to the materials of the judicial file, it results that the Court of Judicial District Tirana, while getting the testimonies of the children D.A and AQ acted in compliance with the respective procedural framework.  As they were 14-year-old children, based on articles 340/ç, 361/5 and 361/7 of the CPC, their questioning was held in camera, through the audiovisual connection, in the presence of the psychologist, in a different place, to avoid the negative emotional burden that could have the courtroom. It results that the psychologist was present during all the time the children were cross-examined and she has had a psychological contact with them. In the hearing dated 14.05.2008, during the cross-examination of the child A.Q, taking into consideration the serious emotional condition of the latter, the psychologist requested the interruption of the questioning. The court accepted the request postponing the cross-examination of the child for another hearing, without having any claims from the parties. The college notes that in the moment of the cross-examination, the applicant did not have any claims regarding the psychological contact of the psychologist with the children.” 

    Decision no. 47 dated 04.03.2014 of the CC which decides not to transfer the case for review in a plenary session. Subject: Repeal, as incompatible with the Constitution of the RoA, decision no.280, dated 30.12.2011 of the Appeal Court Shkodra; no.00-2013-1181, dated 26.09.2013 of the Criminal College of the High Court.  Paragraph 5.1 reads that: “Article 33/1 of the Constitution provides for that everyone is entitled to be heard before being adjudicated. The High Court did not notify the defendant or his defence counsel, especially considering the fact that the defendant was a child. The rights of the individual guaranteed by article 42 of the Constitution cannot be protected especially when the court does not summon the defendant or his defence counsel to hear his allegations, to have a fair and public trial”. 

    Decision no.13, dated 10.06.2005 (V – 13/05) of the CC, which repeals decision no. 565 dated 10.11.2004 of the Criminal College of the High Court as anti-constitutional, and this is even the subject of the decision. This decision underlines that: “… in the adjudication of children, protection is mandatory and its absence, based on article 128 of the Criminal Procedure Code makes the procedural acts absolutely invalid, consequently the adjudication is anti-constitutional. The provision of the Criminal Procedure Code, mentioned above, is a guarantee for the implementation in this field of article 54 of the Constitution, which provides for a special protection for children from the state apart from some other subjects…

    … For the case under adjudication, a special importance is given to the discussion and the solution of the problem, if the above procedural provisions shall be applied in the review of the cases in the High Court. Regarding this, the representative of the Interested Subject, the General Prosecution Office, gave the categorical opinion that these provisions are not applied in the High Court as a Court which controls the enforcement of the law.

    The Constitutional Court reached the conclusion, the High Court, apart from the other principles is compelled to respect the contradiction of the parties’ equality in the adjudication. The enforcement of these principles in the criminal adjudication requires that the child defendant, through his defense counsel, be present and heard just like the prosecutor is. The efficient enforcement of these principles would exclude the disadvantage of a party towards the other. In the concrete case, the High court has breached the principles, even though a recourse was being reviewed, which through changing the decisions of the other instances of adjudication would deteriorate the position of the child defendant”.

    Decisions of the High Court

    Decision no. 30, dated 28.01.1999 of the United Colleges of the High Court, with the subject: The implementation of the requests of article 410/2 of the CPC for the child defendant, in absentia, represented by the ex-officio defense counsel. This decision of the United Colleges of the High Court provides for the implementation of the requests of article 410/2 of the CPC for the child defendant, in absentia, represented by the ex-officio defense counsel. In this decision, the High Court reasons that as the defense counsel has been appointed as the representative of the defendant through a decision of the court, it is not necessary for him to get a representation act from the defendant or the relatives, to appeal the decision for his conviction rendered by the court of the first instance. The High Court finds that the guarantee mentioned above for the child defendant and particularly in absentia, originates from articles 1 and 6 of the CPC and articles 17, 28 and 31 of the Constitution, which are in compliance with the European Convention for the Rights of the Child. The legal obligation provided for by article 410/2 of the CPC shall be understood for the voluntarily absence and escape of the defendant, provided for by article 352 of the CPC.

    Decision no.1006, dated 01.12.2011 of the Criminal College of the High Court with the subject “Rendering the security measure for the child XHK”. Paragraph 9 of the decision underlines: “The criminal college reaches this conclusion referring to the qualities required by the applicant Xhukio Hajrullaj, as a special subject as during the trial and in the moment when the application is filed he is under 18 years of age. Based on this quality, the child enjoys special procedural guarantees as a special subject. Furthermore, these guarantees have been raised to the constitutional law level.  Article 54 of the Constitution provides for: “1. Children, youngsters, … are entitled to a special protection by the state”. Meanwhile, there are several procedural guarantees provided to children during the criminal process, among which we may mentions: the mandatory defence through a defence counsel, the psychological assistance, their adjudication by a specialized lawyer with a special background and knowledge in this field”.

  • Handbook on European law relating to the rights of the child

    http://www.echr.coe.int/Documents/Handbook_rights_child_ENG.pdf last accessed on 03.09. 2017 

    The best interests of the child – A dialogue between theory and practice. © Council of Europe, March 2016. https://rm.coe.int/1680657e56 English language version, last accessed on 03.09. 2017

    Justice reform with an approach towards “Friendly justice for children” – Reflections with a focus on the main principles. Prepared by Arta Mandro. Tirana, 2016.

    PRACTICAL GUIDE, Monitoring places where children are deprived of liberty. DEFENCE FOR CHILDREN INTERNATIONAL (DCI) – Belgium. http://www.childrensrightsbehindbars.eu/images/Guide/Practical_Guide.pdf 

    Doek, J. (2008), ‘Juvenile justice: International rights and standards’, in: R. Loeber, R., Slot, N.W., van der Laan, P. van der and Hoeve, M. (eds.), Tomorrow’s criminals, Farnham and Burlington, Ashgate, pp. 229–246. 

    FRA (2015b), Child-friendly justice. Perspectives and experiences of professionals on children’s participation in civil and criminal judicial proceedings in 10 EU Member States, Luxembourg, Publications Office.

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Arta Mandro
Renate Winter, Arta Mandro, Koraljka Bumči