Table of Content

• Comments
  • Purpose
    1. The purpose of Article 117 has been clearly set out in its caption. This Article refers to the organisation of programs of educational, teaching and rehabilitation nature. There is organic connection with other Articles providing for giving effect to the rights of the conflicting minors, such as: Article 2, paragraph 9; Article 13; Article 22, paragraph 2; Article 47, paragraph 1; Article 68, paragraph 2, letter a) and paragraph 3; Article 69, paragraph 2; Article 75, paragraph 4; Article 81, paragraph 2; Article 102, paragraph 1, letter a) and b); Article 102, paragraph 4; Article 113 paragraph 4; Article 118, paragraph 4 and Article 124, paragraph 1 of CCJM, thus establishing the necessary complicity among them.

     

    2. Article 117, on one hand aims at highlighting the importance of mandatory education for minors having committed criminal offences and do not have this education, thus not ignoring the other levels of education by way of the secondary and higher education. On the other hand, the provisions of this Article set out tasks for the educational institutions, whereby the latter have to ensure the necessary educational standards connected not only assigning weight to the mandatory education, but also creating conditions for putting in place any type of schooling, that the convicted or the remand prisoners need. The realisation of this process may occur through assigning the necessary teaching staff to the penitentiary institutions where the convicts are staying or those expecting to go through criminal proceedings, or by way of sending the minors to the appropriate premises for education. Within the range of this objective Article 117 continues to highlight the importance of schooling outside the premises of prisons or remand centres, thus providing also the possibility of schooling within the premises of remand centres or prisons as the last resort alternative, in order for the minor not to feel discriminated against his peers, regardless of the criminal proceedings they are involved in.

     

    3. Article 117 takes care of protecting the personal data while explicitly providing for that in the certificates or documents of completion of a certain educational course no note shall be contained indicating of their being in a penitentiary or remand institution, in order to restrict the information which would make possible the identification of the minor as a former convict.

     

    4. Article 117 is also sensitive to all the categories of minors, being also those having talents or gifts, as well as those being of restricted ability, thus providing for the obligation that the individuals belonging of the latter category are entitled to benefit from a specialised education referring to the non-affordability, inability or difficulties they encounter.
  • Scope
    5. Article 117 follows two scaling lines in its structure: the first goes from the standards of the mandatory education towards the standard of higher education, from the standard of general education towards the standard of individual education with specific and specialised programs referring to the skills of minors, and the second goes from the education and schooling in the premises of prisons or remand centres, towards the schooling premises outside the prisons or remand centres, thus unifying the objective that the education and schooling should extend over the entire criminal justice system for minors.

     

    6. The structure of Article 117 is concluded with the combination of the joint role that the Ministry of Justice and Ministry of Education has to assume as the two main institutions assigned to take care for the prevention of criminality in minor age groups.
  • Comments
    7. It can be stated that Article 117 is an article combining the institutional obligation of the bodies being involved in the process of criminal justice in taking measures for ensuring the basic mandatory education. Moreover, based on the voluntary choice of the minor, to follow the programs of secondary or higher education depending on the individual interests of the minors. The main purpose of education and rehabilitation programmes is to reintegrate the minor in conflict with the law into society. Participation in education, training and employment is a key protective factor in preventing offending and re-offending behaviour and is crucial to ensuring positive life chances and successful pathways to adulthood. It has to be also highlited the comment to the Article 40 paragraph 1 of the Convention of the right of the child, stating that: “Many children in conflict with the law are also victims of discrimination, e.g. when they try to get access to education or to the labour market. It is necessary that measures are taken to prevent such discrimination, inter alia, as by providing former child offenders with appropriate support and assistance in their efforts to reintegrate in society, and to conduct public campaigns emphasizing their right to assume a constructive role in society”[1]

     

    8. The phrase ‘standards of education’ being in paragraph 2 of this Article implies putting in place the possibilities that the sentenced minor put together and develop independently knowledge and values being required by the democratic society; contributing to the personal well-being and that of the Albanian society and constructively facing the challenges of life; cultivating the personal, national identity and cultural affiliation; getting acquainted with general cultural and civilian values; developing the intellectual, ethical, physical, social and aesthetic aspects; developing their responsibility to themselves, to others and society as well as to the environment; obtaining capacities for their future life and employment in various social and cultural contexts; getting ready to learn during their entire life, etc. Moreover, see Article 4 of the Law no 69/2012 "On the pre-university educational system in the Republic of Albania’, as amended by law no 56/2015, dated 28.05.2015, published in OJ No 105 dated 23.06.2015.[2] Ensuring the standards in the teaching process is also connected to fulfilling the principles by which the educational process in our country is guided, such as: the interest of the pupil is of priority; observation, protection and furthering the human rights and freedoms in general as well as the rights of children specifically; protection against any form of action or omission which might cause discrimination, violence, maltreatment or moral harm; ensuring the right to qualitative education and equal opportunity for education; offering specific care for the pupils of families in need, pupils of limited ability and those having learning difficulty; transparency based on accountability towards the beneficiaries of the educational service; right of pupils, educational employees, parents and their legal representatives, in order to express their views on the quality of the educational service and to be heard for these views and so on.[3] The education should also be used to promote good health, including mental health, highlight the importance of sport and leisure and raise awareness of the harm caused by drugs and alcohol.

     

    9. Providing for the education of minors ‘eventually outside the premises of remand centres and prisons’ should be as the first opportunity for teaching and attending the school at educational institutions which have been established to this effect. This can occur at the schools nearby the remand centres or prisons, or at those contracted to this effect as long as attending school where the minor has done so before is not possible. If providing for this possibility poses difficulty in connection with the degree of danger for the minor or with the nature of the criminal offence, the teaching process of minors should occur at institutions of non-educational nature, such as: premises of remand centres or prisons, or other premises being selected to this effect, in compliance with the legislation on the pre-university educational system in the Republic of Albania. The educational process within the non-educational premises shall occur through the visiting staff therein, however, abiding by the syllabuses/curricula and making use of the same textbooks and didactic means as in the schooling institutions.

     

    10. The phrase ‘vocational training according to their interests and talents’ provided for in paragraph 4 of Article 117 indicates delivering lessons of vocational nature for all those minors having passed the phase of the mandatory nine-year education. The educational program for minors should take account of the interests and talents of the minor. These courses facilitate the integration of the minor through work and the pursuit of a profession after serving the conviction.

     

    11. The rule provided for in paragraph 5 of Article 117 that ‘documents should not contain information making possible the identification of the minors as a former convict or the identification of a previous criminal record’ is very important and it implies that the certificates or school documents establishing the completion of a certain cycle of general or vocational schooling of minors should contain the same data as any other certificate referring to the specific elements of the education level and not to the status of the minor during the completion of the program. Paragraph 5 of Article 117 should be read in connection with paragraph 1, letter a) of Article 43 of CCJM providing for the measures for the protection of the private life of the minor by way of ‘deleting the public data of the names, addresses, location so schooling and/or employments, professions or any other information which may be used for identifying the minor’.

     

    12. The phrase ‘having difficulty in learning connected to the limited ability’ encountered in paragraph 6 of Article 117. This implies that the minors, despite the limited ability, should have the access to education without any discrimination. The standards of UNO Convention ‘On the rights of persons with disabilities’, specifically Article 24 and the law ‘On involvement and accessibility of persons with limited ability’. In this regard, it is important to train all involved professionals, as well as to establish rules that ensure equal treatment of all children in conflict with the law.

     

    [1] COMMITTEE ON THE RIGHTS OF THE CHILD, Geneva, 15 January-2 February 2007.

    ^{[2] https://arsimi.gov.al/files/userfiles/akteligjore/Ligji_Parauniversitar.pdf}

    [3] Moreover, see Article 6 of the Law no 69/2012 "On the pre-university educational system in the Republic of Albania’, as amended by law no 56/2015, dated 28.05.2015, published in OJ No 105 dated 23.06.2015, according to Article 18 of this law: The ministry, in cooperation with the respective bodies, to ensure the education for the individuals of the schooling age at the institutions of remand imprisonment, serving the sentence and at the institutions of social care.

  • Historic context
    13. Criminal Code of the Republic of Albania, approved by law no 7895, dated 27.1.1995 "CRIMINAL CODE OF THE REPUBLIC OF ALBANIA", as amended,[1] in Article 60 ”Obligations of the convict under probation”, paragraph 1 provided for, in the event of convicts being put on probation, the possibility of having a court decision rendered to impose an obligation to get schooling. This Article provides for: ‘The convict placed on probation may be obligated by the court to fulfil one or more of the following obligations: 1. To exercise a professional activity or to receive an education or a professional training;’

     

    14. In general aspects and partially the rules of Article 117 were partially provided for in the law no 8328, dated 16.4.1998 On rights and treatment of convicted and remand prisoners, (.[2] This law in some provisions such as: in Article 11, third paragraph; in Article 32, the second and third paragraph; in Article 37; in Article 39, provides rules regarding a pre-detained or convicted minor, including special care for the cultural and professional development of pre-detainees and convicts under the age of 25.

     

    15. 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” in its Article 41, provides for rules to oversee the obligation to pursue a professional activity or to pursue a professional training.

     

    [1] See laws no 7977, dated 26.7. 1995, 8027, dated 15.11.1995, no 8180, dated 23.12.1996, no 8460, dated 11.2.1999, no 8570, dated 20.1. 2000, nr.8602, dated 10.4.2000, no 8813, dated 13.6. 2000, nr.9085, dated 19.6.2000, no 9187, dated 12.2.2004, no 9276, dated 16.9.2004, no 9911, dated 5.5.2008, no 10 054, dated 29.12.2008, no 145 / 2013, dated 2.5.2013, no 21/2014, dated 10.3. 2000 , nr.99/2014, dated 31.7.2014, no 35/ 2017, dated 30.3.2017 decisions of the Constitutional Court no 55, dated 21.11.1997, no 15, dated 17.4.2003, and no 31, dated 17.5.2012, Law no  10 023, dated 27.11.2012; law no 36/2017, dated 30.3.2017 http://www.qbz.gov.al/botime/Kodi%20Penal-2017.pdf

    [2] 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. http://www.pp.gov.al/web/paraburgosurve_i_perditesuar_1036.pdf

  • International acts
    16. Convention on the Rights of the Child, approved by the General Assembly of United Nations Organisation on 20 November 1989[1], respektively Article 28 and Article 29. 

    17. United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines)[2] 

    18. Under EU law, Article 14 (2) of the EU Charter of Fundamental Rights guarantees the right to education, including “the possibility to receive free compulsory education”. 

    19. Article 2 of Protocol no. 1 of ECHR guarantees the right to education.

     

    [1] https://www.unicef.org/tfyrmacedonia/CRC_albanian_language_version(3).pdf

    [2] http://www.un.org/documents/ga/res/45/a45r112.htm

• International standards/International references/Best examples

  Reports, opinions, recommendations and statements 

  20. Raport of 6 July 2017 on the Motion of the European Parliament on the Resolution "On prison system and conditions.[1] In the following paragraphs it is envisaged: 32.  Calls on the Member States to provide appropriate educational facilities for juveniles in prison; notes that children in detention must have access to programmes that prepare them in advance for their return to their communities, with full attention paid to them in respect of their emotional and physical needs, their family relationships, housing, schooling and employment possibilities and socio-economic status; Calls on the Commission to evaluate the possibility of drawing up a memorandum of understanding at EU level in order to ensure the preservation of the parenthood relationship with imprisoned parents and allow parents to be present at important moments in their children's education, thus safeguarding the interests of minors; 62.  Emphasises the importance of providing access to educational and professional qualifications for prisoners; encourages the Member States to offer meaningful activities such as educational training or work opportunities in accordance with international standards to all prisoners, with a view to re-socialising inmates and providing tools for a crime-free life after their time in prison; encourages the Member States to ensure that inmates work, study for a qualification or attend a training course during detention, so as to better manage their time and prepare their reintegration into society; considers it vital for minors to have access to schooling and vocational training; 66.  Encourages the Member States to share best practices regarding education, rehabilitation and reintegration programmes, particularly in order to improve reintegration after leaving prison and to help prevent recidivism and further radicalisation.

   

  [1] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A8-2017-0251+0+DOC+XML+V0//EN

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

  22. The explanatory report on the draft law ‘Code of Criminal Justice for Minors’[2]

   

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

  [2] Linku: https://www.parlament.al/wp-content/RELACION-KIODI-I-DREJTESISE-PER-TE-MITURIT-NE-RSH-Resized.pdf

• Related articles
  23. Article 2, paragraph 9, of CCJM deals with the concept of the best interest of the child, seen from the perspective of his physical, mental, intellectual and educational development, etc. 

  24. Article 13 of CCJM provies for that every measure taken against a child in conflict with the law must be proportionate to the circumstances of commission of the criminal offence, personality of the child, in accordance with the age, background and education, personal, family, social and environmental conditions, developmental and other needs of the child, including, where appropriate, even special needs. 

  25. Article 22, paragraph 2 of the CCJM provides for the individual assessment of the minor be taking account of the degree of their education and schooling. 

  26. Article 47, paragraph 1 of the CCJM provides for the preparation of the individual report for the the minor to take account of the degree of their education and schooling. 

  27. Article 68, paragraph 2, letter a) and paragraph 3 of the CCJM providing for the binding measures for the minors to be even the one for initiating or re-initiating the studies at an educational institution, which has to be decided to be enforced in collaboration with the educational institutions. 

  28. Article 69, paragraph 2 of CCJM provides for the role of the educational institutions in the event of putting the minor under custody. 

  29. Article 75, paragraph 4, of the CCJM, provides for the minor while being kept in remand imprisonment shall, referring to the need and in compliance with the age, gender and personality, be offered social and educational assistance. 

  30. Article 81, paragraph 2 of CCJM providing for that where a security measure against a child is imposed, the best interest of the child shall be taken into account, the child’s specific needs and the request not to interrupt the educational process. 

  31. Article 102, paragraph 1, letter a) and b), Article 102, paragraph 4, of CCJM, which, in the series of obligations provides for the obligation of the minor to follow the mandatory schooling or, as appropriate, an educational programme; attend a vocational training programme under the law on vocational training. 

  32. Article 113, paragraph 4 of the CCJM provides for the exceptional cases where the minors may jointly participate with adult at rehabilitating, educational, cultural and sports activities. 

  33. Article 118, paragraph 4, of CCJM, provides for a defendant/sentenced child may work only if such activity facilitates vocational education, employment after release and provided that it does not impede child’s education. 

  34. Article 124, paragraph 1, of CCJM providing for the encouraging motivation in case the child shows a good and respectable behaviour, involvement in educational programmes and activities carried out in the juvenile penitentiary institution.

  35. Article 41 of the Decision no 302, dated 25/03/2009, ‘On the approval of the regulation ‘On the organisation and functioning of the probation service and for setting out the standards and procedures for supervising the enforcement of the alternative sentences’ provides for the supervision of the obligation to assume a vocational activity or to be provided with a professional training. 

  36. Article 60 paragraph 1 of Criminal Code of the Republic of Albania, approved by law no 36/2017, dated 27.1.1995 ‘CRIMINAL CODE OF THE REPUBLIC OF ALBANIA’, as amened, provides for the instance of convicts being put on probation, the possibility of having a court decision rendered to impose an obligation to get schooling. 

  37. Article 11, third paragraph of the law no 8328, dated 16/04/1998, provides for the rights and treatment of the convicted and remand prisoners based on an individual plan of rehabilitation and re-integration, taking account of their education. 

  38. Article 32, second and third paragraph of the law no 8328, dated 16/04/1998, providing for the rights and treatment of the convicted and remand prisoners provides for the objectives of psycho-social treatment aiming ad developing the individual skills and faculties from getting re-integrated in the society, by way of integrating the remand prisoners and convicted prisoners in the education programs, vocational training, employment, cultural activities, sports and psychological an social advice. 

  39. Article 37 of the law no 8328, dated 16/04/1998, provides for the rights and treatment of the convicted and remand prisoners provides for the education and cultural and vocational training to be given effect by way of organising schooling obligatory for the minors and professional courses, referring to the effective systems. 

  40. Article 39, first paragraph of the law no 8328, dated 16/04/1998, provides for the rights and treatment of the convicted and remand prisoners provides for that the appropriate and necessary premises have to be ensured in the institutions of serving custodial sentences according the needs for training, for carrying out employment activities, schooling and vocational education. 

  41. Paragraph 3 of the General Regulation of Prisons [1]provides for the way of preparing the evaluation report of the conduct of the convict, whereby the degree of schooling and education shall be taken account of. 

  42. Article 18, paragraph 3, letter ç) of the law no 18/2017 ON THE RIGHTS AND PROTECTION OF THE CHILD.[2] 

  43. Article 18 of the Law No. 69/2012 "On the pre-university educational system in the Republic of Albania’, as amended by law no 56/2015, dated 28.05.2015 providing for the ministry, in cooperation with the respective bodies, to ensure the education for the individuals of the schooling age at the institutions of remand imprisonment, serving the sentence and at the institutions of social care.

   

  [1] http://www.dpbsh.gov.al/newweb/?fq=brenda&m=shfaqart&gj=gj1&aid=34

  [2] http://www.amshc.gov.al/

• Sublegal acts
  44. “Regulation on the cooperation of probation service with NGOs and the Mediation Service’, no 302, Dated 25.03.2009.[1]

   

  [1] http://www.ikub.al/LIGJE_CATEGORY/BASHKePUNIMIN-E-SHeRBIMIT-Te-PROVeS-ME-OJF-te-DH.aspx 

• Decisions
  No Comment
• Literature

  Education in Juvenile Detention Centers By Kimberly Thielbar, https://www.luc.edu/media/lucedu/law/centers/childlaw/childed/pdfs/2011studentpapers/thielbar_juvenile_detention.pdf

  The Right to a Quality Education for Children and Youth in the Juvenile Justice System, Francine T. Sherman and Francine H. Jacobs.

  http://onlinelibrary.wiley.com/doi/10.1002/9781118093375.ch14/summary

  The Right to Education in the Juvenile and Criminal Justice Systems in the United States, Marsha Weissman, Center for Community Alternatives, New York Matthew Cregor, Southern Poverty Law Center, Alabama,

   https://www.aclu.org/files/images/asset_upload_file164_38663.pdf

  THE ROLE OF EDUCATION IN JUVENILE JUSTICE IN EASTERN EUROPE AND THE FORMER SOVIET UNION, Barbara Henkes,

  http://childhub.org/sites/default/files/library/attachments/347_410_EN_original_1.pdf

  Protecting children’s rights in criminal justice systems A training manual and reference point for professionals and policymakers.

  https://www.penalreform.org/wp-content/uploads/2013/11/Childrens-rights-training-manual-Final%C2%ADHR.pdf

• Archive
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