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

Article 14: Prevalence of alternative measures of diversion

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1. In criminal justice proceedings, in order to achieve the purposes of this Code and other justice for children-related laws, priority shall be given to the alternative measures of diversion from criminal prosecution.

2. Alternative measures aiming at diversion from criminal prosecution of the child or enforcement of restorative justice measures shall be considered the first option. Each competent body when making such an assessment shall reflect in the respective acts the fact that alternative measure of diversion serves better the purpose of re-socialization, rehabilitation of the child and prevention of violation of the law than the holding of the child criminally liable and enforcing criminal law.

3. Approach to criminal proceedings against a child in conflict with the law, where appropriate, feasible and necessary, shall be diverted, provided that the rights and protection of the child are fully respected.

4. Any measure used against a child as alternative measure of diversion from criminal prosecution shall contribute to the protection of the rights and legal guarantees of the child.

Table of Content

      1. Article 14 is part of the Articles in Chapter II of the CCJC, which list the principles of criminal justice for children. Consequently, this Article extends its effects throughout the CCJC content. It addresses one of the most important principles such as the principle of giving priority to alternative measures of diversion from criminal prosecution. Given this content, Article 14 is closely related to Chapter VII, entitled “Diversion from criminal prosecution and punishment through alternative measures”, corresponding to Articles 55-73 of the CCJC. The principle of priority of alternative measures of diversion from criminal prosecution is also guaranteed by international legislation recognized and ratified by our country as it will be addressed in this comment. A special place in this regard is occupied by the Convention on the Rights of the Child.

       

      1. At the same time, directly, through the implementation of this principle, it seems that the proper place is left to another equally important principle, provided by Article 15 of the CCJC, such as the principle that restriction or deprivation of liberty should be the last measure. This guarantees the prevention of deprivation of liberty and any danger that a child may face if he/she is deprived of liberty. By underlining “approach to criminal proceedings against a child in conflict with the law shall be diverted”, the legislator intends a wide scope of action for such principle. By giving the right priority to alternative measures of diversion, the path towards education, preventing violations of the law, achieving reintegration goals, rehabilitation and preparation of the child for reintegration is more effective.

       

      1. On the other side, Article 14 seeks to ensure that alternative measures aimed at avoiding the child from criminal proceedings or the enforcement of restorative justice measures, while being considered as the first option, should be seen in harmony with his/her best interest. Their use shall not, in any case, impede the approach of children to justice.
      1. Article 14 presents a combination between the content of material and procedural adjustments. At the same time, the Article refers to an open system of norms such as “other laws relating justice for children”, an expression mentioned in paragraph 1 thereof. This Article establishes all these norms of the Code or other laws under a common denominator in case they deal with arrangements affecting the criminal justice proceedings for children. Such denominator is the provision of priority to alternative measures of diversion from criminal prosecution.

       

      1. The reference character, with an indirect approach, is also found in paragraph 4. This paragraph, from the way it is worded, refers to the provisions of this code related to the child’s rights and legal guarantees, hence, Chapter III of the CCJC, respectively Articles 19-24. The structure of Article 14 assists competent bodies in implementing the principle in any act, decision or action of them, and gives this principle the right priority.
      1. The phrase “In criminal justice proceedings, priority shall be given to the alternative measures of diversion from criminal prosecution” used in paragraph 1 of Article 14 aims to give the right weight and the priority treatment of all the possibilities related to the implementation of alternative measures of diversion by the competent authorities. “Priority” as the key word related to the measure of diversion means that the legislator deems it as an open opportunity for any phase of criminal justice proceedings for children and any phase of criminal proceedings. In this manner, the competent authorities have the discretion and the obligation to reconsider it with priority step by step in conformity with their procedural discretion. Prioroty can be summarised in a court decision stating: “Children are less morally cupable and more cupable of rehabilitation then adults convicted of the same Crimes”.[1] Thus, for example, the prosecutor may decide to apply the measure of diversion before the judicial examination of the case starts according to Article 56 of the CCJC. However, such possibility does not end here because the court may decide to return the case to the prosecutor in order to proceed with the application of the diversion measure under the Article 57 of the CCJC. On the other side, the court may apply the measure of diversion at the trial phase until the final decision is taken. In this way, the competent authority cannot consider it as a closed alternative or a definitive decision only for a certain phase of criminal proceedings, but as an alternative that is assessed until the issuance of a final court decision, which may be appealed. Hence, to put it briefly, the possibilities of the alternative measure of diversion may come into play at any point of the decision-making and may be considered for each child in conflict with the law.

       

      1. The phrase “the first option” cited in paragraph 2 underlines the obligation of the competent authorities that, prior to any other consideration regarding the child in conflict with the law, the first opportunity to be assessed is the alternative measure of diversion of the child from criminal prosecution or enforcement of restorative justice measures. Thus, in a way other than the provision made in paragraph 1, which provides the broad space to consider with priority the implementation of the diversion measure in all procedural phases, paragraph 2 places the emphasis on the assessment order: placing this first. In addition, assessment as the first option does not stand in the vacuum or in the air. The competent bodies according to the definition given to them in Article 3, paragraph 15 of the CCJC and according to their role determined in the provisions of Chapter VII, should deem this “first option” closely related to the consequences that its implementation brings to the child in the present case. The analysis should focus at the effects of the specific alternative measure of diversion in terms of re-socialization, rehabilitation and prevention of law violations by the child. A parallel analysis should be made based on the eventual effects that may be brought in the present case under examination the placement of the child under criminal responsibility and the enforcement of the criminal conviction for him/her.

       

      1. It is important to emphasise that each individual and authority involved in decisions affecting children should be clearly aware of the meaning given to “priority” and “first option” in the principle and practical context provided in this Article. The analysis of the competent body should focus at the benefits of the alternative measure of diversion for the child in the present case. The questions to be answered in this analysis include: Is the child most likely to understand the consequences of his/her actions and to take responsibility for them and to repair the damage done (i.e. by compensating the victim or by carrying out any kind of community service or service for the victim)? Does the enforcement of alternative measures trigger more opportunities in reducing the number of violations, their prevention by the child? Does it allow concrete measures to avoid victim participation, where appropriate, and community participation? What are the eventual risks of implementing the measure of diversion for the child, the victim and the community? The ranking of these questions has not followed a priority line. Many other questions may be added to this list. It is also very important the following question: Are children’s rights guaranteed for a fair trial? The competent authorities should ensure that alternative measures of diversion comply with the child’s human rights, including the right to a fair trial. In the various measures that may be taken, the family should be involved to the extent that such involvement is benefitial for the child.

       

      1. Paragraph 3 of Article 14 establishes a relationship of dependence between the measure of diversion and the initiation of criminal proceedings for children in conflict with the law. For this, it is necessary to understand that although an alternative measure of diversion is a “priority” and should be considered as “the first option”, it must meet four cumulative criteria that make it: appropriate, feasible and necessary and, in any case, through it to be fully respected the rights of the child and his/her defense. An alternative measure of diversion is appropriate if, in its selection, diligence and attention is given to the academic, educational, cultural, religious and linguistic context of the child, his special needs, his/her inclinations, the child’s origin community, the age of child. Moreover, diversion is an alternative sanction which means that the child has to accept it. The diversion is appropriate only if the child voluntarily admits responsibility without the use of intimidation or pressure to get this admition. Therefore, the diversion is appropriate not only when the law gives this possibility for certain criminal offences but also when the child agrees upon respective alternative measure. Hence, to all the components relating the assessment of the principle of his/her best interest, etc. Given that any alternative measure of diversion requires the application of the criteria and conditions under Article 55 of the CCJC and the free consent of the child according to the provisions of Article 59 of the CCJC, it is indispensable that children are provided with the possibility of counseling and legal assistance in order to understand the proposed measure of diversion. Hence, these criteria should be evaluated by the child and by the competent authority. For this purpose, the competent body may, prior to taking the decision on the application of the diversion measure, request information from parents, legal guardians, institutions aware of the child’s activity, including, where appropriate, the Unit for the Protection of Rights of the Child, and the expert’s opinion, according to the needs of the child and the process. Convenience is related to non-discrimination. No child should be unfairly discriminated on grounds of race, gender, ethnic or social origin, color, sexual orientation, disability, religion, conscience, faith, culture, birth or socio-economic status. All children should have equal access to alternative measures of diversion. The diversion as an informal penalty is considered necessary if it can prevent the child from repeating the criminal offence. It is necessary to meet also the child’s needs for development and needs related to socialization. During the process of deciding on certain alternative measures, its suitability and neadness for the child, competent authorities shall gather information in order to assess whether certain deversion measure is feasible for the respective child.

       

      1. The competent authorities, should not mythicize and give priority to the alternative measure of diversion, while there is not enough evidence to continue with proceedings for the child. Thus, an authority cannot address the application of alternative measures of diversion in order to achieve a result that cannot otherwise be obtained. This would bring a great deal of damage to the child’s interest and the rendering of justice. The children in conflict with the law should not be unfairly influenced to admit responsibility for a violation. The elements of a due legal process, such as the principles of legality and proportionality, the presumption of innocence, the right to a fair trial, legal counseling, the right of access to court and appeal, should be guaranteed for children. These rights should not be minimized or denied under the pretext of the diversion measure. On the contrary, children should have the right to access the appropriate complaint mechanisms, which need to be independent and effective. This implies the obligation for training and professional specialization as a guarantee for the implementation of this principle, but also obligation for the competent authorities that children are provided with the legal assistance in order to understand not only the legal process as such and consequences of his/her wrongdoing, but also the proposed measure of diversion, thus, in compliance with the rights and procedural guarantees for children in conflict with the law, pursuant to Chapter III of the CCJC.

       

      [1] US Supreme Courts ruling in Miller v. Alabama:  https://www.supremecourt.gov/opinions/11pdf/10-9646g2i8.pdf

      1. It is the first time the Albanian legislation anticipates at the level of a Code a provision such as the one of Article 14 of the CCJC, which stipulates in principle level the priority of alternative measures of diversion for the child in conflict with the law. As such, are also the provisions of Chapter VII of the CCJC through which this principle becomes enforceable. More specifically, the CPC adopted by law no. 7905, dated 21.3.1995, amended by law no. 8460, dated 11.2.1999, law no. 8813, dated 13.6.2002, law no. 9085, dated 19.6.2003, law no. 9276, dated 16.9.2004, law no. 9911, dated 5.5.2008, decision of the Constitutional Court no. 31, dated 17.5.2012, law no.145/2013, dated 2.5.2013, law no. 35/2017 did not have a similar provision before the approval of the CCJC.

       

      1. Regarding the provisions of the Criminal Code, it is again underlined that the CCJC brings a novelty through the relevant regulations. It may seem like a measure similar to the measure of diversion from criminal prosecution the measure of the exclusion of the child from the sentence under Article 51 of the Criminal Code which was decided by the court. In this case, the court proceeded from the low risk of the criminal offence, the concrete circumstances of its commission and the previous behavior of the child. In these cases, the court may decide to send the child to an educational institution. However, from the way it stands in relation to the special provisions in Chapter VII, it is understood that it is a novelty.

       

      1. The novelty and importance of this provision is revealed in the Report on the draft-law “Code of the Criminal Justice for Children in the Republic of Albania”[1],.

       

      1. In the document on Justice System Analysis, the High Level Expert Group at the Ad Hoc Parliamentary Committee on Justice System Reform has noted a number of deficiencies in the criminal justice system, inter alia, those related to the punishment and conviction aspects provided by the current system, thus promoting alternative measures of diversion.

       

      1. In conclusion, it may be stated that with the CCJC and the principles contained in it on criminal justice for children, there is an adequate approach to international standards in terms of diversion from the prosecution and punishment and restorative justice.

       

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

    • The basic international documents used to perceive the principle of the best interest of the child, as cited in the explanatory report of the CCJC, are the following: 

      1. The UN Convention on the Rights of the Child: Article 40 (3) (b) provides that states “Take measures, whenever necessary and desirable, to treat these children without addressing the judicial proceeding, provided that human rights and legal defense are fully respected; Article 40 (4) underlines the obligation to “provide various provisions, such as care, orientation and control; advice; probation period; care in the family; general and vocational education programs and other solutions, apart from institutional ones, in order to provide children with treatment in accordance with their well-being and in relation to their situation and violation of the law”. Articles 37(b), 40(1) are also important.

  • Reports, opinions, recommendations and declarations 

    1. In the framework of the UN, the following are important: 
    1. United Nations Minimum Standard Rules for measures of alternative punishments (non-custodial measures): “The Tokyo Rules” (1990). Basically, rules 2.5 and 5.1., but also rule 1.2; rule 1.5; rule 2,1; rule 2.4; rule 2.7; rule 8.1; rule 21.1.
    2. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”) (1985) paragraphs 5.1; 6.1, 10.2 dh 10.3 and paragraph 11.
    3. United Nations Rules for the Protection of Juveniles Deprived of their Liberty (‘JDLs’ or ‘Havana Rules’) (1990).
    4. United Nations Guidelines for the Prevention of Juvenile Delinquency (‘Riyadh Guidelines’) (1990); paragraph 6.
    5. Guidelines for Action on Children in the Criminal Justice System (Annex to UN Resolution 1997/30 – paragraph 15.
    6. Administration of Juvenile Justice (‘Vienna Guidelines’)) (1997).
    7. United National Common Approach to Justice for Children (2008) principle 8; strategic intervention paragraph 3 (b) bullet 3 and bullet 5.
    8. Guidelines on the Role of Prosecutors (1990), paragraphs 18 and 19[1].

     

    1. General Comments of the Committee on the Rights of the Child: 
    1. Committee on the Rights of the Child – General Comment No. 10 (2007)– Children’s rights in juvenile justice. The following paragraphs, mainly: 3 and 10; and 24-27 and 68-69.
    2. General Comment No. 12 (2009) – Right of the child to be heard; Paragraph 59 mainly.
    3. General Comment No. 9 (2006) - The rights of children with disabilities paragraph 74/b.

     

    1. Recommendation no. R (87) 20 of the Committee of Ministers to member states of the Council of Europe on social reactions to juvenile delinquency encourages the development of diversion and mediation procedures[2].

     

    1. Recommendation CM / Rec 2008 (11) of the Committee of Ministers to member states of the Council of Europe on the European Rules for juvenile offenders subject to sanctions or measures[3].

     

    1. In the framework of the Council of Europe, the following are also of interest: R(88)6 on social reactions to juvenile delinquency among young people coming from migrant families, 1988; Rec(2000)20 on the role of early psychosocial intervention in the prevention of criminality, 2000; Rec(2003)20 concerning new ways of dealing with juvenile delinquency, 2003; MJU-26(2005) Resol.2 on the social mission of the criminal justice system, 2005; MJU-28 (2007) Resol.2 on child-friendly justice, adopted by the 28th Conference of the European Ministers of Justice, 2007; Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, 2010 (40 p.)[4].

     

    Decisions of the European Court of Human Rights 

    1. ECHR, the case: Adamkieuwicz versus Poland. The European Court of Human Rights has developed a broad jurisprudence in which it confirms and reinforces the importance of respecting the specific situation of children. Regarding the juvenile justice, courts are required to consider the age of the child, the level of maturity, and the intellectual and emotional capacities of the child. This includes the requirement that courts should always promote the child’s ability to participate in the proceedings.

     

    [1] Please refer to: http://www2.ohchr.org/english/law/pdf/prosecutors.pdf.

    [2] Recommendation no. r (87) 20 of the Committee of Ministers to Member States on Social Reactions to Juvenile Delinquency: http://archivio.transnazionalita.isfol.it/file/CoE_Rec_R87-20%20Eng.pdf.

    [3] Pleasse refer to the following link: https://www.unicef.org/tdad/councilofeuropejjrec08(1).pdf.

    [4] In summary, you may find them at: https://rm.coe.int/168070ce24.

  • The Justice System Analysis in Albania, June 2015, drafted by the High-Level Expert Group at the Ad Hoc Parliamentary Committee on Justice System Reform,

    http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, last visited on 12.07.2017; 

    Report on the draft-law “On the code of criminal justice for children in the Republic of Albania”, https://www.parlament.al/wp-content/uploads/MITURIT-NE-RSH-Resized.pdf, last visited 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; paragraph 3. Every child has the right to be protected from violence, ill treatment, exploitation and use for work, especially under the minimum age for work, which could damage their health and morals or endanger their life or normal development. 

    Criminal Code of the Republic of Albania:

    Article 12, Article 52, Article 46. 

    Criminal Procedure Code of the Republic of Albania: 

    Articles 58, 290, 291 and 328. 

    Law no. 18/2017 “On the rights and protection of the child” 

    CCJC:

    Chapter VII

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

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

    The justice system reform with an approach towards “Child-friendly justice”. Some reflections 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. 

    Loeb, Roger C., Marie Waung, and Megan Sheeran. 2015. “Individual and Familial Variables for Predicting Successful Completion of a Juvenile Justice Diversion Program.” Journal of Offender Rehabilitation 54(3):212-237. 

    Patrick, Steven, and Robert Marsh. 2005. “Juvenile Diversion: Results of a 3-Year Experimental Study.” Criminal Justice Policy Review 16(1):59–73. 

    Mackin, Juliette R., Lisa M. Lucas, Callie H. Lambarth, Theresa Allen Herrera, Mark S. Wallter, Shannon M. Carey, and Michael W. Finigan. 2010. Baltimore County Juvenile Drug Court Outcome and Cost Evaluation. Portland, Ore.: NPC Research. 

    Harris, Philip W., Brian Lockwood, Liz Mengers, and Bartlett H. Stoodley. 2011. “Measuring Recidivism in Juvenile Corrections.” OJJDP Journal of Juvenile Justice 1(1): 1–16. 

    Osgood D. Wayne, and Hart F. Weischselbaum. 1984. “Juvenile Diversion: When Practice Matches Theory.” Journal of Research in Crime and Delinquency 21(1):33–56.

    Loeb, Roger C., Marie Waung, and Megan Sheeran. 2015. “Individual and Familial Variables for Predicting Successful Completion of a Juvenile Justice Diversion Program.” Journal of Offender Rehabilitation 54(3):212-237.

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Arta Mandro
Arta Mandro, Koraljka Bumči