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

Article 15: Restriction or deprivation of liberty as a measure of last resort

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1. Arrest, detention or imprisonment of a child shall not be imposed if the aim may be achieved through a more lenient measure.

2. Arrest, detention or imprisonment of a child shall apply in accordance with the provisions of this Code, as well as the criminal procedural law, to the extent this Code does not foresee otherwise.

3. The measures foreseen in paragraph 2 if this article shall be used only as a last resort, for a shortest time possible, and they shall be subject to periodic review by the court.

Table of Content

      1. Article 15 of the CCJC contains a principle of importance for the criminal justice system for children: the principle of restriction and deprivation of liberty as a measure of last resort. Article 15 is positioned at Chapter II and creates effects for the entire content of the CCJC. This effect of the provisions of this chapter is underlined in article 8, which stipulates the expansion of the criminal justice principles for children. The legislator recognizes the principle established in article 15 related interactively with the other principles. Especially, the direct relation is with the principle of the best interest of the child, as set out in article 10; with the harmonious development according to article 12 and with the principle of the priority of alternative measures of diversion according to article 14 of the CCJC. At the same time, this principle is related to other rights, criminal rights and guarantees for children. Liberty restriction as a measure of last resort is guaranteed even by the international legislation and mainly by the Convention on the Right of the Child [hereinafter as the CRC], in article 34 (b)[1] of the Convention, but not only there. 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. Telegraphically, article 15 provides for the forms of restrictions or deprivation of liberty without explaining them, underlining that these shall be the measures of the last resort. The components of this measure are: the child’s arrest, detention and imprisonment. To give a clear meaning, the legislator uses terms that are related to the quantifiers, such as: “lenient measure”, “measure of final resort”, “the shortest time possible” and the “periodic review”. All these phrases have a special importance and weight in the purposes of article 15.

       

      1. The purpose of article 15 is to set out, clear and precise rules related to the restriction or freedom deprivation for the children in conflict with the law and to open the way to a more comprehensive treatment, in chapters IX on “the security measures” and XI “on the purpose and types of the punishment”.

       

      [1] According to article 37 (b): 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. Similarly to other principles of the CCJC, the principle established in article 15, is also a provision of the material nature with a special importance and procedural effect. This is clearly read in the three paragraphs of article 15. For example, paragraph 2 refers directly to the criminal procedural legislation, which means the CPC, and relates the use of the provisions of the CPC with the measure provided for in article 5 of the CCJC. This becomes clear again as the legislator brings it under consideration by underlining the phrase “to the extent this Code does not foresee otherwise”.

       

      1. Also, paragraph 2, provides the article with a referential structure within the parts of the CCJC, both Chapter IX and XI as well as the CPC. The structure of article 15 has strong mandatory intonations. The structure of this article permits the competent bodies to understand the absolute and at the same time variable character of the principle. With regard to the latter, it is their responsibility to follow the stipulations of paragraph 3.
      1. The phrase “a more lenient measure”, used in paragraph 1 of article 15, intends on one side to stop the implementation of the restriction and freedom deprivation and on the other side to provide a broad discretional space for the competent bodies which refer to all the other measures, which in an antithesis with the arrest, detention or freedom deprivation are more lenient. In this way, the legislator stipulates through a special form of wording or through implications that the restriction or freedom deprivation are part of the “severe measures” for the child, his psyche and physical development, for his special needs, development and rehabilitation, therefore they are not the appropriate measures for him. Within the first paragraph, there is another key word which is “the purpose”. Therefore, if the same purpose is accomplished, then, instead of the arrest, detention or imprisonment, “a more lenient measure” is enforced. The competent body shall carry out such an analysis and shall take the appropriate measure, in relation to the fulfilment of the similar purpose or not. For example, it is the responsibility of the police bodies to identify the age of the child at the moment of detention and after this action is completed, the rights and the guarantees related to the child’s age shall be implemented. The initial decision of the police activates other decision-making factors of the justice system for children.

       

      1. The legislator does not provide detailed explanations about the meaning of the phrase “lenient measure” in the content of this article. However, in regard to detention or arrest, chapter IX of the CCJC puts “Security measures” before the “Precautionary measures” which shows the intention of the legislator. This means that the court shall first try to impose Security measures to the child as a “more lenient measure” and only then, and in the cases provided for in this Code, the “more severe one”, such as detention or arrest itself. It has to be mentioned also, that CCJC in its Article 86 provides for the criteria for the imposition of arrest against the child, by linking to Article 228 of the CPC. At the same time, it foresees some additional criteria that have to be fulfilled before applying detention of arrest towards the child. This shows that detention or arrest during investigation phase, may be imposed against a child only as a measure of a last resort.

       

      1. As already explained, in the cases of the measures of restriction and freedom deprivation, such as the arrest or detention against a child, the competent body shall implement with rigorousness and priority, the provisions of this Code set out in Chapter IX and Chapter VIII. Regarding the CPC, the following articles are of importance: article 229 paragraph 3; article 230 paragraph 4; article 255 paragraph 3 and 4; etc. In cases of imprisonment, a child may be imprisoned only in cases foreseen in the Article 97 of the CCJC.

       

      1. The provision of paragraph 2, article 15 is conditioned by the content of paragraph 3. The phrase “measure of last resort” facilitates the decision-making and the analysis of the competent body. It is their duty to decide on the restriction or freedom deprivation as the last alternative, through a control list and eventual measures. The “of last resort” means that it is enforced only when no other “measure” has effects on the concrete case, if we made an analogy with another field. So, to some extent, it is the last resort through which the purpose can be reached. The phrase “of last resort”, in this context, can be found in other articles as well. For example, article 71, paragraph 3 of the CCJC highlights that even when the child does not fulfil the obligations which originate from the measure of diversion, this does not constitute a criminal offence and does not bring automatically the restriction or freedom deprivation of the child. In this case also, freedom deprivation is considered by the competent bodies as the last resort. Additionally, as already mentioned, article 86 of the CCJC classifies the measure of arrest as the final resort while on the other hand, article 94 of the CCJC reemphasises the fact that the sentence with imprisonment is the final resort and refers the competent bodies to a professional study of the measures of diversion, provided for in chapter VII.

       

      1. The phrase “for the shortest time possible” is also an obligation which accompanies the cases of restriction or of freedom deprivation even if the court decision imposes imprisonment against the child. The meaning of this phrase shall be related to the concrete measure. The obligation for “a periodical review” of the decision on the restriction or freedom deprivation by the court is the effective means to be used by the competent authority to verify the achievement of the purpose and at the same time to verify the possibility for the implementation of the criterion “shortest time” commented above. By using this stipulation in the general provisions, the legislator encourages the measures for a periodical review of every decision-making that restricts and deprives freedom by following the procedural rules in force. Thus, for example, an illustrative case is Article 132 of the CCJC, which provides for the possibility of reviewing the decision and applying conditional release (parole). ccording to Article 87 of the CCJC, the court has an obligation, even upon its own initiative, to decide on continuation, replacement or revocation of the arrest measure every month. This obligation of the court differs from the one foreseen in Article 246 paragraph 6 of the CPC, providing for shorter periodical review when arrest measure is imposed against a child.
      1. The report on the draft-law “Criminal Code of Justice for Children in the Republic of Albania”[1] identifies the importance of this principle. Also, this report transmits all the international instruments with an impact on criminal justice for children.

       

      1. In the document on the Analysis of the Justice System, the Group of Experts of High Level attached to the Ad Hoc Commission for the Reform in the Justice System has noticed several flaws of the criminal justice system in relation to the children who are authors, victims or witnesses. It underlines that there is an absence of the legal stipulation and detailing of the rights and procedural guarantees of the injured person in compliance with the minimum standards of the EU. 

       

      1. In conclusion, we may say that with the CCJC and its principles on criminal justice for children, there is an adequate approximation with the international standards in relation to 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/RSH-Resized.pdf.

      1. Convention on the Rights of the Child, 20 November 1989, Article 37 underlines that “(b) 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]

       

      1. Rule of the United Nations on the protection of the youngsters whose freedom has been deprived (Rules of Havana) refer to the protection of the child whose freedom is deprived; it provides the meaning of freedom deprivation (II.12/13/14); the applicable rules, especially for the child under arrest or waiting for the adjudication (III); freedom deprivation against the child shall be the last resort for the shortest time possible and shall be limited only in extraordinary cases. The application of the conditional release (I/2); freedom deprivation shall be made for an objective legal cause, etc.

       

      1. General Assembly of the UN, Rules of Beijing “Rules on the minimal standards for the Justice Administration for the Child” resolution 40/33, 29th November 1985, rule no. 13 underlines that “13. Detention pending trial 13.1 Detention pending trial shall be used only as a measure of last resort and for the shortest possible period of time. [2]

       

      1. European Parliament and Council, Directive 2016/800/EU “On the protective procedural measures for the suspected or accused child in the criminal proceeding”, 11th May 2016, paragraph 45 of the preamble underlines that “(45) Children are in a particularly vulnerable position when they are deprived of liberty. Special efforts should therefore be undertaken to avoid deprivation of liberty and, in particular, detention of children at any stage of the proceedings before the final determination by a court of the question whether the child concerned has committed the criminal offence, given the possible risks for their physical, mental and social development, and because deprivation of liberty could lead to difficulties as regards their reintegration into society.[3]

       

      [1]  https://www.unicef.org/tfyrmacedonia/CRC_albanian_language_version(3).pdf  last accessed on 27th September 2017.

      [2] http://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf  last accessed on 27.09.2017. 

      [3] http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016L0800&from=EN last accessed on 27th September 2017. 

  • Reports, opinions, recommendations 

    1. Human Rights Committee General Comment No. 35, Article 9 (Liberty and security of person), 16 December 2014 18.[1]

     

    1. Committee of the Rights of the Child attached to the UN, General Comment no. 10 “The rights of children in criminal justice” paragraph 78- 80 underlines that “78. Article 37 of CRC contains the leading principles for the use of deprivation of liberty, the procedural rights of every child deprived of liberty, and provisions concerning the treatment of and conditions for children deprived of their liberty. Basic principles 79. The leading principles for the use of deprivation of liberty are: (a) 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;... 80. …. An effective package of alternatives must be available (see chapter IV, section B, above), for the States parties to realize their obligation under article 37 (b) of CRC to use deprivation of liberty only as a measure of last resort.[2]

     

    1. Committee of the Rights of the Child attached to the UN, General Comment no. 5 (2003)[3]

     

    1. Committee of Ministers, Council of Europe, Recommendation CM/Rec(2008)11 “On the European Rules for the juvenile offenders subject to the penalties and criminal measures”, 5th November 2008 part I, A paragraph 10 underlines that “10. Deprivation of liberty of a juvenile shall be a measure of last resort and imposed and implemented for the shortest period possible. Special efforts must be undertaken to avoid pre-trial detention.”[4]

     

    1. Committee of Ministers, Council of Europe “Rules on Friendly Justice for Children and the Explanatory Memorandum”, 17th November 2010 inter alia emphasises that: “19. Any form of deprivation of liberty of children should be a measure of last resort and be for the shortest appropriate period of time.”[5]

     

    1. Resolution no. 2010 (2014) of the Parliamentary Assembly of the Council of Europe: Child-friendly juvenile justice: from rhetoric to reality.[6]

     

    1. Committee of Ministers, Council of Europe Recommendation no.CM/Rec(2008)11 on the member states, on the European Rules for juvenile offenders subject to sanctions or measures.[7]

     

    Decisions of the European Court of Human Rights 

    1. ECtHR, in some decisions against France has detected violations of the ECHR for the administrative detention of children (ECRE, 15 July 2016). On 12 July 2016, the European Court of Human Rights ruled against France in the cases of A.B. and Others v France, R.M. and M.M. v France, A.M. and Others v France, R.K. v France. The cases concerned the issue of administrative detention of children who are accompanying their parents in the context of a deportation procedure. The Court considered that, given the children’s age and the duration and conditions of their administrative detention, the French authorities had subjected these children to inhuman and degrading treatment, violating article 3 of the European Convention on Human Rights (ECHR). In four of the cases, the Court found that the families’ placement in administrative detention was not a measure of last resort and that the domestic authorities failed to explore all other viable alternatives. As a result, the Court found a violation of the right to liberty and security (Article 5, paragraph 1 of the ECHR) and of the right to a speedy review of the lawfulness of detention (Article 5, paragraph 4). In two of the cases, the Court also found that there had been a disproportionate interference with the right to respect for family life (Article 8 of the ECHR).

     

    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 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] http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11

    [2] http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf last accessed on 27th September 2017

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

    [4] https://www.unicef.org/tdad/councilofeuropejjrec08(1).pdf last accessed on November 27, 2017.

    [5] https://rm.coe.int/16804b2cf3 last accessed on September 25, 2017.

    [6] http://semantic-pace.net/tools/ERGLnhzbA==&xsltparams=ZmlsZWlkPTIxMDkw Last accessed on 03.09. 2017

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

  • Analysis of the justice system in Albania, June 2015, drafted by the Group of High Level Experts attached to the Ad Hoc Commission for the Reform in the Justice System[1]: last accessed on 12.10.2017; 

    Report on the draft-law “On the Criminal Code of Justice for Children”[2], last accessed on 12.10.2017

    In comments on Albania’s Initial Report, the Committee on the Rights of the Child “… notes the progress reported by the State Party in giving primary consideration to the best interests of the child. However, the Committee regrets that the determination of what constitutes the ‘best interests‘ seems to be the decision of adults alone involving little consultation with children, even when they are able to state their opinions and interests” (Albania CRC/C/15/Add.249, para. 26).

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

    [2] https://www.parlament.al/wp-content/uploads/2017/01/RELACION-KIODI-I-DREJTESISE-PER-TE-MITURIT-NE-RSH-Resized.pdf

  • Constitution: 

    Article 54   

    CCJC

    Article 3 paragraph 4 and 9

    Article 82

    CPC

    Article 228

    Article 229

    Article 230

    Article 232

    CP

    Article 66

    Article 71

  • No Comment
  • No Comment

  • Study: “Juvenile justice in Albania: an analysis of the system of juvenile justice administration and of the situation of children in conflict with the law in Albania”, led by UNICEF, with the support of European Commission and Sida[1].

     

    [1] http://www.crca.al/sites/default/files/publications/Drejtesia%20per%20te%20mitur.pdf last accessed on 16th September 2017. 

  • Laws

    CPC (before the amendments by law no. 35/2017, date¨ 30.3.2017)

    Article 228

    Article 229

    Article 230 

    KP before the amendments

    Articles 58-64

    Article 69

Arta Mandro
Koraljka Bumči