Table of Content

• Comments
  • Purpose
    1. The lawmaker realizes need for combining together interaction on one side of the CCJC provisions and, on the other side, the exemption from the application of the existing provisions. The latter, after 1 January 2018 cease to act on all matters irrespective of whether they are at the phase of their investigation, trial or execution.

     

    2. The purpose of Article 140 is that in accordance with Article 10 of the CCJC to make it clear that the retroactive power of the provisions extends only if it improves the conditions and position of the child and is in the best interest of the child. Moreover, it clarifies the progressive way of starting the legal effects only for a set of provisions relating to the establishment of institutions or the provision of certain specialized services. Such approach in the legal provision is made, so that the lawmaker leaves the required time and space available to the creation and establishment of these institutions by the executive and/or legislative power. In addition, it determines the obligation of the listed institutions to create the conditions, within six months, to adapt the premises in order to work with children and to create conditions for capacity building of expertise by preparing lists for persons to be trained.
  • Scope
    3. Article 140 of the CCJC clearly and concisely determines that the date of commencement for the implementation of the provisions of this Code is the date of 1 January 2018 even for the cases that are at the phase of investigation, trial or execution.

     

    4. The second paragraph stipulates the retroactive power of the CCJC provisions. This exceptional case is conditioned only by the improvement of the conditions and the position of the child and closely linked to the best interest of the child and this is deemed as one of the basic principles of this Code. While the third paragraph of this Article clearly stipulates that the provisions of this Code relating the establishment of institutions or the provision of services shall progressively start the effect in accordance with the provisions of this Article.
  • Comments
    5. Article 140 stipulates the term for the entry into force of the provisions being segregated into “three segments”. The first segment includes the period within six months from the adoption of the law and within this period the existing infrastructure needs to be adapted to provide adequate facilities for the questioning of children involved in the criminal justice process and for the selection and preparation of human resources that will be involved as professionals in this process. The second segment includes the period until 1 January 2018, during which the existing legislation continues to apply. The third segment includes the period until 1 January 2019, when it is anticipated to begin full implementation of the CCJC, which includes a set of provisions related to the establishment of new institutions that will manage the program on children placement in foster care, placement under supervision, and the like.

     

    6. Relating the meaning of the expression “on cases that are at the phase of investigation, trial or execution” used in the first paragraph of Article 140 of the CCJC, the lawmaker connects the procedural moment in which the cases are with the commencement of the application of CCJC provisions. Thus, the CCJC extends the effect of enforcement on all cases involving children under the provisions of Article 4 of this Code and for the cases that are at the phase of investigation, trial or execution irrespective of the time of commission or registration of the criminal offense according to the CrPC regulations.

     

    7. The “Retroactive Effect” of the provisions of this Code shall only apply if it is met the condition that the implementation of the retroactive effect improves the position of the child and is in the best interest of the child. This is underlined in paragraph 2 of Article 140 and is anticipated as an exception from the application of paragraph 1. Thus, here is sanctioned that the CCJC retroactive power is conditionally applied. The general principle is that each law extends the effects on cases that arise after its entry into force. The theory of law recognizes that retroactive power is applied as an exception, for example, in favouring criminal laws, in laws that intervene to regulate previously unlawful situations, in laws that interpret the dark or vague sides of a previous law and in any other case where there is a necessity to avoid serious, negative or irreparable consequences. Such treatment is also found in Decision No. 9, dated 26.02.2007 of the Constitutional Court. The Principle of retroactive power is closely related to Article 29, paragraph 3 of the Constitution and to the general principles of this Code (Article 10 of the CCJC), according to which the retroactive power of application of the provisions extends only if this improves the conditions and position of the defendant and is in the best interest of the child.

     

    8. Regarding the expression “Best interest of the child” as provided in paragraph 2 of Article 140, it may be stated that this is in accordance with Article 10 of the CCJC and paragraph 9, Article 3 of the CCJC that also stipulates the concept of “Best interest of the child”, which means the right of the child to have a healthy physical, mental, moral, spiritual and social development, and to enjoy a family and social life appropriate for the child. The best interest of the child is one of the principles deriving from Article 3 of the UN Convention on the Rights of the Child ratified by our country. Article 3 of this Convention provides the obligation that the child’s best interest should be the prevailing consideration. The court shall, in the case of adjudicating a criminal case of justice with children during the period until 1 January 2018, decide whether to apply the CCJC or the existing legislation after analysing the conditions and position of the child, having as a primary requirement the analysis of the child’s best interest. If the analysis shows that the child’s position is more protected with the CCJC, then this Code will apply. The child’s interest will be considered “more protected”, for example, in cases when the CCJC provisions provide different alternatives from the punishment of imprisonment. It is evident that the CCJC tends towards the principle that punishment by imprisonment should be the ultimate alternative and other mechanisms to be used for its avoidance, which have not been so specifically recognized and regulated by the existing legislation.

     

    9. Paragraph 3 of Article 140 identifies two legal situations of organizational character. Firstly, the establishment of new institutions provided by the CCJC and, secondly, the deployment of new services provided by both existing institutions and new structures expected for the CCJC implementation. The expression used by the lawmaker in paragraph 3 of this Article “progressively start the effect according to the provisions of this Article” aims that the provisions of this Code that are related to the establishment of institutions or the provision of certain specialized services which are listed in Article 140 to begin to have an effect on their implementation progressively. Thus, it is anticipated that, within six months from the entry into force, i.e. within the date of 1 July 2018, to be made the adaptation and provision of premises for questioning the children. By the date of 1 July 2018, lists of persons specializing in cases of justice for children should be prepared and training programs and training arrangements should be approved. By the date of 1 January 2019, the provisions relating the activities of the competent institutions and authorities performing functions relating to: [a] the placement of the child under supervision, according to the provisions of Article 83 of the CCJC; [b] placement of the child in a specialized service according to the provisions of Article 84 of the CCJC; [c] placement of the child in foster care under Article 69 of the CCJC and [ç] follow-up on the fulfilment of obligations by children, according to Article 102, paragraph 3 of the CCJC; [d] cases of deprivation of liberty according to Article 98 of the CCJC; [e] the renewal of persons with disabilities, according to the provisions of Article 119 of the CCJC; [f] the establishment of the Children and Juvenile Crime Prevention Center, according to Article 133, paragraph 4 of the CCJC.

     

    10. The obligation of the competent bodies to meet the above-mentioned deadlines in paragraphs four, five and six of this Article are clearly expressed in the determination of terms and the allocation of obligations for the establishment of these structures according to the respective institutions. Paragraph 4 of Article 140 lists the obligations of the Ministry of Justice and the Ministry responsible for the rule. These institutions are required that within six months from the entry into force of the CCJC to adapt the existing facilities for the questioning of the child with the necessary technique required by the CCJC for the transformation of the image or voice in order to ensure the life and health of the child, to respect his/her private life, to maintain his/her identity, to ensure the right distance from the accused person in cases of witnesses and victims, to ensure the questioning in appropriate premises according to the age and individual qualities of the child in order to avoid his intimidation, or intimidation by the criminal process and the participants in it, and the reasonable procedural and physical adaptation.

     

    11. Paragraph 5 of Article 140 relates to the establishment of human capacities of professionals dealing with the process of criminal justice for children, including lawyers, psychologists, social workers, forensic and mental health experts, employees of state police, judges, prosecutors, judicial police officers, employees of the Unit for the Protection of Children’s Rights, employees of the Probation Service, employees of institutions for the removal or deprivation of liberty, and the like. The 6-month term is linked, on one side, to the selection and preparation of the lists with the names of these professionals, but on the other side, with the completion of the process for the evaluation of training needs, the preparation and approval of training programs, and the organization of training sessions, which will have a duration according to the needs provided for each group of professionals. The lawmaker has deemed that the six-month term is sufficient to carry out a full-time training program which shall be continuous.

     

    12. This deadline relates to the establishment of new institutions in Albanian legal practice and provision of new services is foreseen in paragraph 6 of the Article 140. Such are the placement of the child under supervision, the placement of the child in foster care, the follow-up on the fulfilment of obligations by children, and the services that guarantee the sport and the renewal of persons with disabilities. Paragraph 6 specifically refers to the establishment of the Child and Juvenile Crime Prevention Centre, which requires special attention and evaluation from the human and financial resources point of view.
  • Historic context
    13. In the document “Justice Reform with approach towards “Child-Friendly Justice”, it is highlighted that: “UNICEF Albania’s recommendations in addressing Justice Reform issues have as their main axis the approach of “child-friendly justice”. Shortcomings and barriers in our justice system for children have been issues that have been addressed in the Annual EC Progress Report on Albania (2014). Specifically, the report addressed problems, such as: lack of special rooms for children under 14 years old in the police stations; fees for judicial service which remain an obstacle for access to justice; provision of the majority of legal services to vulnerable groups (including children) by NGOs through the financial support of various donors, which does not fully cover the needs of the children, nor does provide sustainability; lack of the presence of the psychologist during the questioning of children at weekends or official holidays; detention of children more than provided in the Criminal Procedure Code for non-serious offenses; maltreatment of children in penitentiary institutions and, of course, the lack of coordination between justice institutions and child protection systems for children stemming from the justice system and in need of reintegration in society in order to reduce the rate of recidivism.

     

    14. Regarding the elements related to the investigative and judicial procedure we ascertain as immediate that the process of interrogation of the child should be made in appropriate premises for children and in appropriate manner.

     

    15. The procedures should also limit the number of times that a child may be questioned and prevent confrontation with the accused person before, during and after the testimony; limit the number of authorized persons to question the child; allow the audio-visual recording of the interview; allow a change in the order of evidence; and allow the use of other measures so as to facilitate the child’s testimony in the best possible environment for the child. Regarding legal aid, it was stated as necessary to review and expand the number of cases it deals with. Lack of such aid to children constitutes an obstacle for access to justice. So far, cases of abused children were covered mainly by NGOs with the financial support of various donors, although legislation provides that support is to be provided by the responsible state authorities.

     

    16. In addition, this document also highlighted Directive 2012/29 of the European Council relating the establishment of minimum standards for the protection of victims of violence, where it is important to underline that in a criminal trial, all involved professionals should be well-trained and specialized. All these issues have been addressed in the new CCJC.

     

    17. The Report on the Implementation of the Action Plan for Children 2012-2015[1] provides: "Capacity building of all professionals working with children in contact with the justice system to promote, respect and fulfil children's rights. With the purpose, to draft effective monitoring and evaluation standards and procedures, to improve data collection and reporting, focusing on children in the justice system. Strengthening human rights institutions to monitor and report on the situation of children in the justice system. This should be accompanied by the establishment of child involvement mechanisms and broad community awareness on the use of national and international strategies or instruments. To ensure the right of the child to be affiliated in any litigation in a child-friendly way, including civil and criminal cases, as well as administrative procedures affecting children in accordance with the age and maturity of the child. "

     

    [1] http://femijet.gov.al/al/wp-content/uploads/PLANIT-T%C3%8B-VEPRIMIT-P%C3%8BR-F%C3%8BMIJ%C3%8B-2012-2015.pdf

  • International acts
    18. UN Convention on the Rights of the Child (20 November 1989): In the context of Article 140 of the CCJC, Article 3 paragraph 1, Article 12 paragraphs 1 and 2, Article 15 paragraph 2, Article 40 paragraphs 2 and 4. Article 3 paragraph 1 of the Convention determines that in all decisions relating to a child, whether taken by public or private institutions of social support, by courts, administrative authorities or legislative bodies, the best interest of the child shall be the prevailing consideration.
    19. The United Nations Guidelines for the preventionof juvenile delinquency (The Riyadh Guidelines).[1]
    20. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”).[2]
    21. The United Nations Rulesfor the protection of juveniles deprived of their liberty (“HavanaRules”).[3]  
    22. The United Nations Standard Minimum Rules related to Non-custodial Measures (Tokyo Rules) (1990)[4].

     

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

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

    [3]https://www.unodc.org/pdf/criminal_justice/United_Nations_Rules_for_the_Protection_of_Juveniles_Deprived_of_their_Liberty.pdf

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

• International standards/International references/Best examples

  Reports, opinions, recommendations and declarations 

  23. "Justice in Matters involving Child Victims and Witnesses of Crime" UNICEF Commentary of the United Nations Model Law provides some positive experiences of interest in matters of criminal justice for children.
  24. ECOSOC Resolution 2005/20 Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime[1] provides, in particular, in paragraphs 32 and 33, concrete measures to be taken by such authorities related to professionalism and training, security of the child, etc.

   

  [1] http://www.un.org/en/ecosoc/docs/2005/resolution%202005-20.pdf

• Legislative material
  25. 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[1].
  26. Report dated 28.03.2017 on the draft law “Code of Criminal Justice for Children in Republic of Albania”[2].
  27. Decision of the Assembly No. 97/2016 package of 27 draft-laws.[3]
  28. Minutes dated 27-28 March of the Committee for Legal Affairs, for review and approval of the draft law “Code of Criminal Justice for children in the Republic of Albania”.[4]

   

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

  [2] http://www.reformanedrejtesi.al/sites/default/files/relacioni-1.pdf ,

  [3] http://www.reformanedrejtesi.al/sites/default/files/relacioni-1.pdf ,

  [4] “http://www.reformanedrejtesi.al/sites/default/files/procesverbal_date_24.06.2016_0.pdf

• Related articles
  29. Constitution: Article 27 paragraph 2 letter “ç”, Article 29, Article 54 paragraph 1, paragraph 3 and paragraph 4, Article 30, Article 31.
  30. Criminal Code of the Republic of Albania Article 12, Article 41, Article 52, Article 46.
  31. Criminal Procedure Code of the Republic of Albania, Article 290, Article 35, Article 49, Article 42, Article 229, Article 230, Articles 13 and 81, Article 340, Article 361, Article 103, Article 410.
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