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

Article 107: Execution of non-imprisonment sentences

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1Non-imprisonment sentences foreseen by this Code shall be executed by the General Directorate of Probation Services.

2The child shall continue serving a non-imprisonment sentence or conditional punishment, as determined in the decision against a child even if the child has reached 18 years of age before execution or during execution of this decision. In such case, the relevant provisions of this Code shall apply.

3In case of violation of the regimen defined for execution of the non-imprisonment sentence against a child, the Probation Service shall draft a warning note, which, where appropriate, shall be handed to or sent via registered mail to the sentenced child against receipt of acknowledgement.

4If the child departs from serving the non-imprisonment sentence, conditional punishment or fulfilment of an obligation, the Probation Service after verifying the facts and the circumstances, shall report to the prosecutor and where appropriate, propose changing the decision.

5The prosecutor, where appropriate, may request the court to change the decision.

6The court, when examining the request, shall hear the prosecutor, the child, the defence counsel and take the opinion of the representative of the Probation Service and legal representative of the child.

7The Court, upon request of the parties, may examine even other evidence.

8In this case, the Court shall take a decision within one week from the submission of the request.

Table of Content

      1. Article 107 of CCJM aims at laying out rules on the enforcement of custodial sentences touching upon the competent bodies involved in this process and regarding the proceedings to be followed in such an instance.

       

      1. This Article has solely procedural contents. The rules contained in this Article aim at facilitating a complex process for the court, prosecution and probation service, but also for the defence lawyer or legal representative of the child, being significant stakeholders involved in this procedure to facilitate and to meet the foreseen obligations, as required, from legal and practical point of view, in the contents of the non-custodial sentence. The article is in connection with situations emerging on case basis at the stage of the enforcement of the non-custodial sentences, as long as failures in meeting the obligations by the minors are observed or situations of non-observation of the regime set out therefore are found. Article 107 spells out the diligence of the lawmaker to make evident the cases of evasion of non-custodial punishment or sentencing on parole or in meeting certain obligations, thus setting out also the consequences emerging to the minors in such instances, while introducing the procedural actions to be carried out by the competent bodies. Article 107 takes care of shedding light appropriately even on the relations of these institutions and procedural entities in their relationships, as well as in connection with the criminal justice proceedings for minors in general.

       

      1. Article 107 aims at specifying the procedure of serving the non-custodial sentence, on parole being infringed, or in performing an obligation for the minors being under the age of 18 years, i.e., minors prior to and during the enforcement of the decision, as well as for those persons being minors prior to the enforcement of the decision, however, reaching the age of 18 years during the enforcement of the decision.

       

      1. As a conclusion, Article 107 highlights once more the principle of conducting of a criminal justice process for the minors as soon as possible and efficiently, providing for short time periods, as provided for in paragraph 8 the time period of one week, as well as other fast arrangements for carrying out the necessary procedures connected to the case where there is a request for taking additional evidence.
      1. Article 107 starts, in its structure, with a reference line. This is evident in paragraph 1 and paragraph 2 of the Article, where the lawmaker expresses itself in general terms referring to all the provisions providing for the nature and type of the non-custodial conviction decision, while not specifying them one after the other.

       

      1. Article 107 follows, in its structure, two parallel lines: first, in paragraphs 2, 3 and 4 it follows an hypothetical line to deal with three situations or sets of facts which might be encountered in the practice of enforcing the non-custodial criminal decisions, decisions on parole and decisions for performing an obligations and, second, paragraphs 5, 6, 7 and 8 following a descriptive line for settling the consequences emerging out of the situations presumed in the preceding paragraphs.

       

      1. The structure of Article 107 is concluded with paragraph 8. Hereby are concluded the actions which may be committed during the enforcement of the non-custodial conviction decision, thus streamlining the sequences of actions provided for in paragraph 7 of this Article within a period of one week.
      1. Article 107 identifies the fact that the procedure it sets out is not a mandatory procedure for all cases where a non-custodial sentence is imposed, upon condition or by the imposition of an obligation but it has a limited application only in cases when the juvenile is not performing according to the decision.

       

      1. Article 107 in paragraph 1 stipulates that the General Directorate of the Probation Service is presiding over the enforcement of the non-custodial conviction decision, being the institution directly tasked by the Directorate charged by the NSCP for this purpose.

       

      1. Within the procedure laid down in Article 107, it underlines the few procedural rules that are mandatory in the case of non-execution of the of non-custodial sentence, on condition or by performing an obligation, such as: drafting a warning record by the probation services, posting or sending it to the minor, obtaining confirmation of receipt of the record of the warning, reporting of the Probation Service to the prosecutor, proposal of the Probation Service for amending the decision, prosecutor's request to the court for amending the decision, the organization of a court hearing and a request to the court for the examination of other evidence.

       

      1. As it was referred to in paragraph 1, the lawmaker makes a reference no the non-custodial sentences ‘provided for in this Code’, thus making no concrete reference. Thus, it is about Articles 95, 98, 99, 100, 102, 103, 105, 108 and 139. Article 95 provides for the types of sentences for minors, at the top being ranked the non-custodial sentences such as: a) restriction of liberty; b) house arrest; c) fine; ç) community work; d) prohibition to performing an activity; dh) fulfilment of certain obligations. Further on, CCJM deals with the meaning and application of each of these non-custodial sentences, etc.

       

      1. Paragraph 2 of Article 107 makes use of another reference which is done in the instances when the minor, in the course of enforcement of the non-custodial sentence, reaches the age of 18. At this point, the lawmaker refers generally to the implementation of the CCJM, however not specifying the provisions. A provision connected to reaching the age of 18 years during the enforcement of a sentence upon a minor is contained in Article 123, paragraph 2, of CCJM.

       

      1. Paragraph 3 of Article 107 deals with the case when the minor violates ‘the regime having been set out’ for the enforcement of the sentence. The phrase ‘regime having been set out’ implies the entirety of rules and actions having been set out explicitly in the non-custodial conviction decision. The regime encompasses not only the actions, omissions and obligations to be diligently followed by the minor, but also the other specifications which might be connected to the timing of commission of the action, with the way of accomplishment, to the location or setting where the obligation is performed, persons who might accompany the minor, means and devices through which the action is carried out and similar matters. Thus, the regime contains a series of indicators, being provided for in the decision, accompanying on case bases the list of actions or obligations to be carried out by the minor.

       

      1. Paragraph 3 of Article 107 provides also for the preparation of ‘warning minutes’ by the Probation Service. ‘The warning minutes’ are, from the formal perspective, drafted in a form of a written document, being drafted in the instances when the Probation Service observes that the minor has committed a violation of the regime being set out to be followed in the decision, or there are initial tendencies or attempts for not fulfilling the obligations, or upon observing a non-performance in the series of obligations to be carried out by the minor. The warning minutes consist in themselves in highlighting or describing the concrete situation of violating the obligations while describing the scope of conduct, actions or omissions of the minor. The purpose of drafting these minors is to make known to the minor that the first violation of the regime should not go towards the non-tolerable limits, in order to prevent taking other more severe measures for changing the non-custodial sentence. The minutes provided for in par 3 of Article 107 warn the minor to get away from the infringement of the regime provided for in the non-custodial decision. The minutes are handed over in person to the minor or sent per post, while ensuring the selection of a postal service obtaining the handover record.

       

      1. Paragraph 4 of Article 107 provides for in the event of a violation of the regime having been set out, the Probation Service shall report to the prosecutor and ‘as appropriate’ proposes changing the decision. Referring to the contents of this paragraph, we conclude that the Probation Service informs the prosecutor on any deviation from the serving of the non-custodial sentence, however, not always asking him for changing the decision. Article leaves it at the choice of the Probation Service to decide whether it is the case to propose to the prosecutor about changing the decision, or it is the case to provide to the minor another opportunity to observe the regime having been set out in the future, reflecting on the elimination of factors or cases having caused the deviation from the serving of the non-custodial sentence. If the Probation Service has repeatedly failed in getting the conduct of the minor right for meeting the obligations, then it is the case to ask the prosecutor for changing the decision. The same expression ‘as appropriate’ is being used even in paragraph 5 of Article 107, where the lawmaker provides that the prosecution office deems to seek changing the decision, referring to the circumstances of the concrete case.

       

      1. Paragraph 6 provides for the obligation of the court, prior to deciding whether it is going to admit the request of the prosecutor for changing a decision, to ‘consult’ the Probation Service. A prima vista it seems as a vicious circle starting with the Probation Service and coming back to the Probation Service. This makes us understand that in each single case, regardless whether the procedure starts with the request or proposal of the Probation Service for changing the decision, or it starts from the prosecutor, the Probation Service have to have their say before the court, in order for the decision-making body to make a cross-check of all the bodies being part of the entirety of circumstances of each concrete case.
      1. It is the fist time in the Albanian legislation that such a regulation as that of Article 107 of CCJM is provided for, thus setting out the principle of converting the non-imprisonment decision of the minor in the event of failure to meet the foreseen obligations.

       

      1. Prior to CCJM, this surrounded elements connected to the amendment of the decision on parole or upon probation of the convicts in general, due to the failure to meet the obligations set out in Article 62 of the CC approved by law no 7895, dated 27.1.1995 , amended by: laws no 8175, dated 23.12.1996; no 8204, dated 10.4.1997; no 8279, dated 15.1.1998; no 8733, dated 24.1.2001; no 9017, dated 6.3.2003; no 9030, dated 13.3.2003; no 9086, dated 19.6.2003; no 9188, dated 12.2.2004; no 9275, dated 16.9.2004; no 9686, dated 26.2.2007; no 9859, dated 21.1.2008; no 10 023, dated 27.11.2008; no 23/2012, dated 1.3.2012; no 144, dated 2.5.2013; no 98, dated 31.7.2014; no 176/2014, dated 18.12.2014; no 135/2015, dated 5.12.2015; no 82/2016, dated 25.7.2016; no 36/2017, dated 30.3.2017; no 89/ 2017, dated 22.5.2017 decisions of the Constitutional Court: no 13, dated 29.5.1997; no 46, dated 28.8.1997; no 58, dated 5.12.1997; no 65, dated 10.12.1999; no 11, dated 2.4.2008; no 19, dated 1.6.2011; no 47, dated 26.7.2012, and no 9, dated 26.2.2016. Article 62 provides for: Violation of the conditions and obligations during the probation period (Amended by Law no. 10 023, dated 27.11.2008) If the convict, during the term of probation, commits another criminal offence, the court may change the imposed obligations, replace the sentence rendered with another one or revoke fully or partly the suspension decision.  If the convict, during the probation term, violates the conditions or obligations that were set, the probation services shall report immediately to the prosecutor.  Due to minor violations of conditions and obligation decided by the court, which were committed for the first time, the prosecutor has the right to give a warning, which is registered in the personal file of the convict.  For severe and repeated violations, the prosecutor shall request the court to change the imposed obligation, add up other obligations, replace them with other sanctions or revoke the decision for the suspension of the sentence and get the remainder of the sentence to be served in jail.

       

      1. Prior to CCJM, there were Articles 25, 31/3, 31/4, 31/6, 31/10 of the law no 8331, dated 21.4.1998 ‘On enforcement of criminal decisions amended by law no 10024, dated 27.11.2008[1].

       

      1. Decision no 302, dated 25.3.2009 "On the approval of the Regulation ‘On the organisation and functioning of the Probation Service and determining the standards and procedures for supervising the enforcement of the alternative sentences”[2] as a bylaw act prior to CCJM in Article 47 included rules on the ‘Failure to meet the conditions and obligations’ and in Article 59 rules on changing the obligations"

       

      [1] Article 25 provides for: Regarding other types of sentences, in case of non-presentation or avoidance of execution, the prosecutor shall submit the request for a change of the type of sentence according to the rules laid down in the Code of Criminal Procedure.; Article 31/1 provides for the instances of suspension of the decision for community work (Added by law no 10 024, dated 27/11/2008); Article 31/4 provides for: "... If the person serving sentence at home does not comply with the obligations determined by the court, the Probation Service after verifying the facts and circumstances informs the prosecutor. "Article 31 / 6 provides for: "... Probation service supervises the enforcement of decision for release on parole and when necessary it cooperates with local government bodies and state police.  Probation service may require the prosecutor the change of one or more obligations of the person released on parole if he is not able to fulfil them.  Article 31 / 10 provides for: The court at the request of the prosecutor examines the violation of conditions of alternative sentence (Added by the law no 10 024, dated 27/11/2008) or non-fulfilment of the given obligation and may decide the full or partial change or revocation of alternative sentence.”

      [2] http://www.sherbimiproves.gov.al/images/pdf/1_Rregullore_Shp.pdf

      1. Convention on the Rights of the Child approved by the General Assembly of United Nations Organisation on 20 November 1989[1], in its Article 37, letter b) provides for: “(d) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”

       

      1. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)[2], mainly paragraph 18.

       

      1. The United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)[3] provides for: "14. Discipline and breach of conditions 14.1 A breach of the conditions to be observed by the offender may result in a modification or revocation of the non-custodial measure. 14.2 The modification or revocation of the non-custodial measure shall be made by the competent authority; this shall be done only after a careful examination of the facts adduced by both the supervising officer and the offender. 14.3 The failure of a non-custodial measure should not automatically lead to the imposition of a custodial measure. 14.4 In the event of a modification or revocation of the non-custodial measure, the competent authority shall attempt to establish a suitable alternative non-custodial measure. A sentence of imprisonment may be imposed only in the absence of other suitable alternatives. 14.5 The power to arrest and detain the offender under supervision in cases where there is a breach of the conditions shall be prescribed by law. 14.6 Upon modification or revocation of the non-custodial measure, the offender shall have the right to appeal to a judicial or other competent independent authority.

       

      [1] https://www.unicef.org/magic/media/documents/CRC_albanian_language_version.pdf

      [2] http://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf

      [3] http://www.ohchr.org/Documents/ProfessionalInterest/tokyorules.pdf

    1. Recommendation CM/Rec(2010)1 of the Committee of Ministers to member states on the Council of Europe Probation Rules[1], mainly in paragraphs 35, 42, 45;

     

    1. Recommendation CM/Rec(2008)11 of the Committee of Ministers to member states
      on the European Rules for juvenile offenders subject to sanctions or measures[2] provides for

     

    1. Commentary of (The Beijing Rules)[3];

     

    [1] https://www.pmscr.cz/download/mezdoken_European_Probation_Rules.pdf

    [2] https://wcd.coe.int/ViewDoc.jsp?p=&id=1367113&Site=CM&direct=true

    [3] http://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf

    1. EXPLANATORY REPORT ON THE DRAFT-LAW ‘N SOME AMENDMENTS AND ADDENDA TO THE LAW NO 7895, DATED 27.01.1995 "CRIMINAL CODE OF THE REPUBLIC OF ALBANIA"[1] provides for: "The novum of the draft law is the improvement of the provisions that provide for alternatives to punishment (Articles 60, 60/a, 62,62/a, 64) in order for alternative decisions to be enforceable by allowing them to be monitored by the Probation Service.

     

    1. Analysis of Justice System in Albania, June 2015, drafted by the Senior Experts Group at the Ad Hoc Parliamentary Committee for Justice System.[2]

     

    [1] https://www.parlament.al/wp-content/uploads/2017/01/RELACION-KODI-PENAL-I-REPUBLIKES-SE-SHQIPERISE.pdf

    [2] http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf

    1. Article 62 of Criminal Code of the Republic of Albania, approved by law no 7895, dated 27.1.1995 , amended by: laws no 8175, dated 23.12.1996; no 8204, dated 10.4.1997; no 8279, dated 15.1.1998; no 8733, dated 24.1.2001; no 9017, dated 6.3.2003; no 9030, dated 13.3.2003; no 9086, dated 19.6.2003; no 9188, dated 12.2.2004; no 9275, dated 16.9.2004; no 9686, dated 26.2.2007; no 9859, dated 21.1.2008; no 10 023, dated 27.11.2008; no 23/2012, dated 1.3.2012; no 144, dated 2.5.2013; no 98, dated 31.7.2014; no 176/2014, dated 18.12.2014; no 135/2015, dated 5.12.2015; no 82/2016, dated 25.7.2016; no 36/2017, dated 30.3.2017; no 89/ 2017, dated 22.5.2017 decisions of the Constitutional Court: no 13, dated 29.5.1997; no 46, dated 28.8.1997; no 58, dated 5.12.1997; no 65, dated 10.12.1999; no 11, dated 2.4.2008; no 19, dated 1.6.2011; no 47, dated 26.7.2012, and no 9, dated 26.2.2016.

     

    1. Articles 25, 31/3, 31/4, 31/6, 31/10 of the law ‘On enforcement of criminal decisions’ no8331, dated 21.4.1998, amended by law no 10024, dated 27.11.2008.

     

    1. Articles 47 and 59 of the Decision no. 302, dated 25.3.2009 "On the approval of Regulation “On the organisation and functioning of the Probation Service and setting out the standards and procedures for supervising the enforcement of the alternative sentencing”.

     

    1. Articles 10, 11, 11/3 and 32 of the law no 8328, dated 16.4.1998 On rights and treatment of convicted and remand prisoners, amended by law no 8758, dated 26.3.2001 published in OJ no 15) (amended by law no 9071, dated 22.5.2003 published in OJ no 53) (amended by law no 9888, dated 10.3.2008 published in OJ no 44) (amended by law no 10 087, dated 26.2.2009 published in OJ no 32) (amended by law no 40/2014, dated 17.4.2014, published in OJ no 67.

     

    1. Article 31 of Decision no. 302, dated 25.3.2009 "On the approval of Regulation “On the organisation and functioning of the Probation Service and setting out the standards and procedures for supervising the enforcement of the alternative sentencing” provides for the obligation for drafting and submitting the report by the Probation Service, upon the request of the prosecutor or court.
    1. Decision no 302, dated 25.3.2009 On the approval of the Regulation “On the organisation and functioning of the Probation Service and setting out the standards and procedures for supervising the enforcement of the alternative sentencing”.
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  • MANUAL FOR PROBATION SERVICE EMPLOYEES, OSCE Linku: http://www.osce.org/albania/80121?doënload=true 

    Mears, D. (2002) ‘Sentencing Guidelines and the Transformation of Juvenile Justice in the 21st Century’ , Journal of Contemporary Criminal Justice 18(1): 6-19. 

    http://journals.sagepub.com/author/Alberola%2C+Cristina+Rechea 

    Junger-Tas, J. (2002) ‘The Juvenile Justice System: Past and Present Trends in Western Society’, in I. Weijers and A. Duff (eds) Punishing Juveniles, pp. 23-44. Oxford: Hart 

    Justice (2004) Restorative Justice: The Way Ahead. London: Justice . http://journals.sagepub.com 

    Fionda, J. (1998) ‘The Age of Innocence? The Concept of Childhood in the Punishment of Young Offenders’ , Child and Family Law Quarterly 10(1): 77-87 http://eprints.kingston.ac.uk/12371/

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Manjola Xhaxho
Arta Mandro, Koraljka Bumči