Table of Content

• Comments
  • Purpose
    1. The title of Article 21 lays out the orientation regarding its contents and purpose. The Article purports to specify the bounds of respecting private data pertaining to a minor being charged having been convicted in connection with the commission of a criminal offence and to minor being a witness and/or victim of the commission of a criminal offence.

     

    2. Article 21 contemplates to establish the appropriate relationship between the CCJM and two other important laws: Criminal Code and the legislation for the protection of personal data being in effect, considering these instruments in consolidating harmony and complementary to each-other.

     

    3. Article 21 also contemplates setting out the circle of persons who might be encompassed into the category which should be protected against the identification and against the publication of data. Hereunder is included not only the minor having been charged or convicted in connection with the commission of a criminal offence, but also the witness minor and victim minor. It is understandable that the type of harm being caused to each of them has its own specific features and for this reason the lawmaker has made use of an entirely banning legal language, thus starting with paragraph 2 of Article 21 with the phrase ‘’No information shall be published ...’ or in paragraph 4 of Article 21 with the phrase ‘Identification or publication shall be prohibited ...’ aiming at protecting the minor, fully and unconditionally, against the publication of information containing private data.

     

    4. This article has a completely ordering nature and it designs the bounds for respecting the private data along the entire phases of criminal justice for minors. The purpose for extending these bounds beyond the proceedings convicting the minor being charged of the commission of the criminal offence is their protection against the publication of these data, which may ensue harm to the minor and may cause difficulties to their social and professional integration in the future. The lawmaker has extended the protection from the procedural perspective even to the investigation process, as well as, from the perspective of persons benefiting out of this protection, to the witnesses and victims of a criminal offence. This is the objective that the final goal of the Article is connected to in order to avoid in all the instances the harm to the minor out of the publication of the private data.

     

    5. Further to dealing with the criminal justice stages, Article 21 aims at extending the protection even to the upcoming stages, beyond the conclusion of the criminal justice for minors, where the competent bodies carry out the process of processing the data of the minors for statistical, research, legislative and administrative purposes.

     

    6. There are also the eventual exceptions contained in the text of Article 21, however, highlighting the rule that any publication of personal data may be made only with the consent of the minor and referring to the legislation for the protection of personal and private data, to the effect of ensuring the appropriate protection.

     

    7. Article 21 aims at ensuring full protection in the instances of infringement of legal rules, even through foreseeing the sanction of the norm, which is the punishment through criminal sentence for each offender.
  • Scope
    8. Article 21 has been broken down into a structure with seven paragraphs/points, where in each of them, occasionally in a declarative and principle-related language and occasionally in an ordering language, there are sanctioned important protection rules regarding the private data, which, in the event of infringement, incur criminal liability.

     

    9. Article 21 sanctions, after launching the principle of observing the private rights of the minor in the proceedings of criminal justice and sanctioning the cases when this observation should absolutely not be infringed, further on in a clear and comprehensive final statement in its paragraph 7 that the entity causing the harm shall face criminal liability. This type of hierarchically layout of listing, ranges from the rules of a principle and obligatory nature provided for in points 1, 2, 3 and 4 and through to those of an exceptional nature provided in paragraph 5 of Article 21. The protection provided by Article 21 for minors in each stage of the criminal justice, regardless of the status they are enjoying, peaks in paragraphs 2 and 4, where its structure is accommodated by a language which is of strictly banning and ordering nature.

     

    10. Article 21 has a structure following the referral line in two instances: first in paragraphs 4, 5 and 6, this Article refers to the legislation for the protection of the personal data being in effect. This nature of referrals aims, in the structural sense, to impart to each implementing entity of CCJM the way how this Article has to be read parallel to the special law. Second, this Article refers, in its para 7, to the rules of the Criminal Code being in effect regarding the criminal liability and punishment in the event of violation of the provisions contained in the text of this Article.

     

    11. This Article contains a detailing of the banning rules contained therein. This is evident in point 5 where it is foreseen that only in exceptional instances the personal data regarding a criminal offence carried out by a minor under 18 years of age may be identified or published. However, this paragraph sanctions that this action may be carried out only with the consent of the minor. Article 21, para 5, sanctions that these data are absolutely dictated only through the choice of the minor or the adult regarding a criminal offence carried out by him while being under 18 years of age and his free will, and not the choice of the justice institutions and/or other institutions/professionals connected to the justice, politics, media or others, and always in harmony with the special law for the protection of the personal and private data, shall prevail.
  • Comments
    12. The entities being obliged to protect the private life and observation of the will of the minor: Regarding the criminal justice proceedings for minors, Article 21 of CCJM highlights the rules and principles being mandatory for being implemented by the individuals and the institutions, such as the instance of the principle of observation and protection of the data of private life and principle of the observation of the free will of the minor in the event of their publication. This provision should also be seen in conjunction with the provisions of the Criminal Code of Procedure regulating closed door trial.

     

    13. Regarding the term ‘right to privacy’ provided for in paragraph 1 of Article 21, we may state that all personal relations that one has with others fall under the concept of private life of a person; the interests and activities not being part of the professional or public life in the sense of the Constitution of the RA, Article 8 of ECHR,[1] International Conventions being ratified and the Albanian legislation[2]. Any element of a reserved and confidential nature shall fall under the concept of privacy. The social and family life, the personal life of the individual which is beyond the public eye, becomes part of the private life. The right to privacy is difficult to be provided as a definition. The right to privacy encompasses the right to the protection of intimate sphere, identity, name, gender, honour, dignity, appearance, feelings and sexual orientation of a person and it is extended over the residence, family and correspondence. The right to privacy may be restricted to the interest of others under specific circumstances, provided that the intervention be not arbitrary or illegal. The right to privacy is the right to individual autonomy which is violated when the state, institutions, media, other intruding individuals intervene, criminalise and ban actions which, in their essence, pertain only to the individual.

     

    14. The privacy of a minor encompasses all things being personal, indicating how the minor accomplishes out his daily emotional, physical, anatomic, human personal and family needs. Hereunder are also included also data pertaining to problems, flaws, illegal actions, where he has been involved as a witness, victim or charged in connection with its commission. These instances, events, documents, photos, videos, administrative acts or judicial decisions, minutes and interviews, data or facts should be considered to be classified and prohibited to become public to the effect of having the future life of a minor protected to the extent possible, even after the minor has become legally adult upon reaching the appropriate legal age.

     

    15. Regarding the phrase ‘in each stage of criminal proceedings for minors’, Article 21 provides, in its para 1, for the protection of private data for the minor at the stage of processing the data operatively by the police, during the investigation of the criminal case by the police and prosecution office, during the adjudication by the court, during the enforcement of the criminal decision by the probation service, re-education institutions or penitentiary institutions, by the healthcare institutions, therapeutic clinics and others, depending on the type of measures taken for the re-socialisation or rehabilitation of the minor. The entire data becoming part of the personal file of the minor regarding the conduct and actions carried out by them or sustained by them shall be considered as personal data which should be observed within the obligations provided for in Article 21 of CCJM.

     

    16. Paragraph 1 of article 21 provides for the respect of the privacy of the minor in such a way as to ‘avoid harming the child’.  ‘Harming the child’ means any property or non-property damage which might emerge in the form of a damage to their health, to the form of an aggravated spiritual situation, in the form of infringement of their dignity, in the form of distorting the labour relations or of loosing the capability to work in a certain position wherefore they have applied or may apply in the future, to study at a program or school where they have applied or may apply in the future, harming the family relations, such as divorce, separation, quarrels etc.

     

    17. The phrase ‘No information shall be published’, being used at the beginning of part 2 of Article 21, has an ordering character. This means that any action incurring making the private data public shall categorically be prohibited. Article 21, further on, makes use of the phrase ‘publication in whatever form’, which is contained in its par 4. By ‘publication’ is meant the presentation of personal data in public, in whatever form of disseminating information. By the phrase ‘in whatever form’ are meant the physical or virtual means of making the publication possible. There is also included making public through written or electronic media, by way of on-line group or individual communication, by way of comments made in on-line social media blogs, through interviews, public conversations, discussions and debates within the interest groups, being connected to the social or professional life of the minor, and other similar ways. There should be highlighted that any form or device making the information or a data on the privacy of the minor public shall be considered to be its publication. Thus, the term ‘publication’ does not imply only the publication in the literary or newspaper style, but also the instances when private data are divulged to a sole individual, to a group of individuals, to a certain body or institution, or with the public at large. Law no 9887, dated 10.03.2008, amended by law no 48/2012 ‘On protection of personal data’[3] in paragraphs 8 and 10 of Article 3, provides for the devices which might be automatic, semi-automatic and mechanical, electronic instruments, computer, computer programs and any other electronic or automatic device, wherewith the processing of personal data, which may be published, is made. In the Lanzarote Convention[4], Article 31 regulating General Protection Measures provides “Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by: a. informing them of their rights and the services at their disposal and, unless they do not wish to receive such information, the follow-up given to their complaint, the charges, the general progress of the investigation or proceedings, and their role therein as well as the outcome of their cases; b. ensuring, at least in cases where the victims and their families might be in danger, that they may be informed, if necessary, when the person prosecuted or convicted is released temporarily or definitively; c. enabling them, in a manner consistent with the procedural rules of national law, to be heard, to provide evidence and to choose the means of having their views, needs and concerns presented, directly or through an intermediary, and considering their opinions; d. providing them with appropriate support services so that their rights and interests are duly presented and taken into account; e. protecting their privacy, their identity and their image and by taking measures in accordance with internal law to prevent the public dissemination of any information that could lead to their identification; f. providing for their safety, as well as that of their families and witnesses on their behalf, from intimidation, retaliation and repeat victimisation; g. ensuring that contact between victims and perpetrators within court and law enforcement agency premises is avoided, unless the competent authorities establish otherwise in the best interests of the child or when the investigations or proceedings require such contact. 2. Each Party shall ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings. 3. Each Party shall ensure that victims have free access to legal aid when it is possible for them to have the status of parties to criminal proceedings. 4.  Each Party shall provide for the possibility for the judicial authorities to appoint a special representative for the victim when, by internal law, he or she may have the status of a party to the criminal proceedings and where the holders of parental responsibility are precluded from representing the child in such proceedings as a result of a conflict of interest between them and the victim. 5.  Each Party shall provide, by means of legislative or other measures, in accordance with the conditions provided for by its internal law, the possibility for groups, foundations, associations or governmental or non-governmental organisations, to assist and/or support the victims with their consent during criminal proceedings concerning the offences established in accordance with this Convention. 6.  Each Party shall ensure that the information given to victims in conformity with the provisions of this article is provided in a manner adapted to their age and maturity and in a language that they can understand.

     

    18. Par 2 of Article 21 deals also with the phrase ‘identification of the minor’ in conflict with the law, child or witness victim of a criminal offence’. By ‘identification’ is to be understood making personal data pertaining to the civil status of the minor, hereunder falling the name, surname, father’s name, mother’s name, date of birth, age, gender, as well as other characteristics which might be connected to the school where they are following studies, town of birth and residence, as well as respective addresses, available. Identification of the minor shall also be considered making the photo of the minor available, associated or not with the explanations connected to the actions he has committed, the criminal offence, or even with regard to the criminal offence where the minor is a victim, witness etc.

     

    19. The phrase ‘data on previous convictions’ contained in par 3 of Article 21 provides for each single private data making up the criminal file of the minor and his criminal record to be considered as such, thus being subject to the legal prohibitions of the publication and provided for in this Article. ‘Previous conviction’ shall be each conviction imposed for the same criminal offence or for different criminal offences, prior to the minor reaching 18 years of age. This para. of Article 21 should be seen in conjunction with Article 37 of the Convention of Lanzarote, which provides: “Recording and storing of national data on convicted sexual offenders 1. For the purposes of prevention and prosecution of the offences established in accordance with this Convention, each Party shall take the necessary legislative or other measures to collect and store, in accordance with the relevant provisions on the protection of personal data and other appropriate rules and guarantees as prescribed by domestic law, data relating to the identity and to the genetic profile (DNA) of persons convicted of the offences established in accordance with this Convention. 2. Each Party shall, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, communicate to the Secretary General of the Council of Europe the name and address of a single national authority in charge for the purposes of paragraph 1. 3. Each Party shall take the necessary legislative or other measures to ensure that the information referred to in paragraph 1 can be transmitted to the competent authority of another Party, in conformity with the conditions established in its internal law and the relevant international instruments.”

     

    20. Par 4 of Article 21 provides for the prohibition of identification or publication of personal data of the child, unless foreseen by law on the personal data protection. In the contents of this paragraph, there are contained phrases needing further explanations. Regarding the phrase ‘of personal data of minor’, provided for in par 4 of Article 21, we clarify that the definition of the term ‘personal data’ is provided for in par 1 of Article 3 of the Law no 9887, dated 10.03.2008, amended by law no 48/2012 ‘On protection of personal data’, according to which: "1. “Personal data” shall mean any information relating to an identified or identifiable natural person, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity. Provided for in par 4 of Article 3 of the law on the personal data is that the data connected to the criminal convictions are considered to be sensitive personal data: "4. “Sensitive data” shall mean any piece of information related to the natural person in referring to his racial or ethnic origin, political opinions, trade union membership, religious or philosophical beliefs, criminal prosecution, as well as with data concerning his health and sexual life.

     

    21. The phrase ‘...with the exception of the instances provided for in the legislation for the protection of the personal data’, provided for in par 4 of Article 21, par 5 of Article 21, refers to the exceptional cases where, with the consent of the minor, there may be made the publication of identification of the minor according to the rules ‘contained in the legislation for the protection of personal data’ and the same referral legal language is made use of by the lawmaker in par 6 of Article 21, while using the phrase ‘is carried out in compliance with the legislation on the protection of personal data’. Paragraphs 4, 5 and 6 of Article 21 of CCJM refer us to the Article 7, par 2, and Article 11, of the Law no 9887, dated 10.03.2008, amended by law no 48/2012 ‘On protection of personal data’ dealing with the protection of sensitive personal data.[5]

     

    22. Par 5 of Article 21 of CCJM provides, as a matter of exception, the instances when it is allowed to publish the private data of the minor ‘only upon their consent’. Regarding the term ‘consent’, Article 21 provides for the expression of the free will as an absolute condition. Otherwise, there can be no publication of the personal data of the minor in absence the consent given by them. The free consent is an aspect which should be relying on an intrinsic will, clearly expressed and argued, based on a clear information and understanding of the proceedings and consequences emerging out of such publication. It is decisive that the minor be aware how the publication shall occur, in what fashion and or what purpose. The flawed consent, being granted or obtained under the circumstances of threat, fraud or any other way of physical or psychological violence, shall not be valid and grants the right to the minor to stop the process of publication of his private data.

     

    23. Regarding the phrase ‘Processing of the data of minors’, provided for in par 6 of Article 21, I refer to par 12 of Article 3 of the law. “Processing of personal data” shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, transmission, dissemination or otherwise making available, alignment or combination, photographing, reflection, entering, filling in, selection, blocking, erasure or destruction, even though they are not recorded in a data base. “Processor” shall mean a natural or legal person, public authority, agency or other body which processes personal data on behalf of the Controller.

     

    24. Par 7 of Article 21 makes a twofold reference to par 4 of Article 21, however, it refers to the Criminal Code in the event of infringement of the legal obligations emerging out of par 4 of Article 21 since it considers this infringement as a criminal offence. The phrase ‘consists a criminal offence under the provisions of the Criminal Code’ implies that in all the provisions of the Criminal Code of the Republic of Albania, approved by law no 7895, dated 27/01/1995,[6], it refers to the privacy and to the infringement of the right connected to it and there will be criminal liability for the individual having infrigned it. More specifically, the Articles being connected to the private life are the Articles (121, 121/a, 122, 123, 313/b of Criminal Code), regulating respectively: unfair intrusions with the private life, persecution, divulging personal secrets and hindering or infringing the secrecy of correspondence, banning granting and declaring the data against the law. 

     

    [1] See: Ivana Roagna, Protection of the right to the observation of the private and family life according to the European Convention of Human Rights, Manuals of Council of Europe on human rights, in https://rm.coe.int/16806f1557

    [2] Articles 121, 122, 123 of the Criminal Code of the Republic of Albania provide for a special protection of the private life and its aspects.

    [3] See: http://www.inovacioni.gov.al/files/pages_files/ligji_nr_9887_date_10_03_2008_i_ndryshuar_me_nr__48__2012__per_mbrojtjen___.pdf

    [4] https://rm.coe.int/168046e1e3

    [5] This article provides for: "2. Processing of sensitive data shall be done only if: a) the data subject has given his consent, which may be revoked at any given moment making illegal any further processing of data; b) it is in the vital interest of the data subject or another person and the data subject is physically or mentally incapable of giving his/her consent; c) it is authorized by the responsible authority for an important public interest, under adequate safeguards; ç) It is related to data which are manifestly made public by the data subject or is necessary for the exercise or defence of legal rights; d) data are processed for historic, scientific or statistical research, under adequate safeguards; dh) data are required for the purposes of preventive medicine, medical diagnosis, the provision of health care, treatment or management of health care services and data are used by medical personnel or other persons with the obligation to preserve confidentiality; e) data are processed by non-profit political, philosophical or religious organisations and trade unions for purposes of their legitimate activity, only for members, sponsors, or other persons related to their activity.  These data shall not be disclosed to a third party without the consent of the data subject unless otherwise stipulated by law. ë) data processing is necessary for the purpose of accomplishing a legal obligation and specific rights of the controller in the field of employment in compliance with the Labour Code. Article 11 of this law provides for the way of publishing the personal data and in par 2 of this article there is provided for: ‘The exemptions, under this article, may be allowed up to the extent that they reconcile the right to protect personal data with the ruled governing the right to freedom of expression.

    [6] 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.

  • Historic context
    25. It is the fist time in the Albanian legislation that such a regulation as that of Article 21 of CCJM is provided for, thus setting out the principle of protection of privacy of a minor in the proceedings of criminal justice for minors.

     

    26. Prior to the CCJM entering into effect, there was, in terms of general aspects of the protection of personal data surrounding privacy of an individual, the law no 9887, dated 10.03.2008, amended by law no 48/2012 ‘On protection of personal data’[1] having regulated in its articles the obligation of the institutions to process and collect data, take care of their storage in the context of observing the privacy of people, while making no distinction as to the difference in age or due to any other criterion. The only issue being underlined by this law was and remains the classification of the sensitive data, where those connected to the vulnerable groups due to gender, race, age etc., are with a strictly controlled status.

     

    27. Prior to the Law no 9887, dated 10/03/2008 ‘On protection of personal data’, there was the Criminal Procedure Code having provided for the criminal offences in an attempt to protect privacy against the publication of personal data, specifically Article 121, providing for installing the devices serving for perceiving or registering the words or images; the perception, recording or transmission of the words, taking note, recording or transmission of images, as well as preservation for publication or the publication of these data outing an aspect of the privacy of the person against his will consists a criminal offense and it shall be convicted to a fine or imprisonment up to two years; Article 122, providing for the divulging of a secret pertaining to the privacy of a person by a person becoming aware of it due to their office or profession, upon being obliged not to disseminate it while not being authorised, consists a criminal offense and it shall be punished to a fine or imprisonment up to one year. The same offence, being committed for profit purposes or to the effect of harming another person, consists a criminal contravention and shall be punished to a fine or up to two years imprisonment, while Article 313/b qualifies as a criminal offence divulging or publishing, in any format and against the law, data of classified and confidential character, risking the life, physical integrity or freedom of the protected persons, in accordance with the legislation in effect for the protection of witnesses and collaborators of justice, to the effect of outing these persons, and it shall be punished to a fine or imprisonment up to two years. Such Article provides for that, upon grave consequences emerging or this same offence being carried out by one of the persons being bound to the responsibility of preserving the classified and confidential character of the data, or upon the offence incurring as consequences the death, the extent of sentence shall be increased up to ten years.

     

    28. Before law no. 9887, dated 10.03.2008, "On the Protection of Personal Data" there was the Criminal Procedure Code which has provided in Article 340, paragraph 1 letter ç) and paragraph 2 letter a) that stipulate that closed door hearing shall be conducted when the court decides that the main trial or some of its actions should be conducted with closed doors: "ç) when deemed necessary when questioning the juvenile witness ..." and that " 2. The trial is always conducted with closed doors when: a) adjudicating juveniles; b) adjudicating adult defendants who are accused of committing criminal acts against juveniles as victims, regardless of the age of the victim during the trial." In the Explanatory report of the Criminal Code it was emphasized that the “Draft-law provides for an accurate and clear definition of these criminal offences, by guaranteeing and protecting against the publication and information on the identity of the protected, anonymous or vulnerable witness, or of a person, whose identity is involved in the proceedings for being included in the protection program or of the person being involved in the protection program.[2]

     

    [1] http://www.arsimi.gov.al/al/program/mbrojtja-e-te-dhenave-personale/ligji-per-mbrojtjen-e-te-dhenave-personale, Visited on 04.09.2017,

    [2]https://www.parlament.al/wp-content/uploads/2017/01/RELACION-KODI-PENAL-I-REPUBLIKES-SE-SHQIPERISE.pdf. Visited on 04.09.2017.

  • International acts
    29. THE CONVENTION ON THE RIGHTS OF THE CHILD, being approved by the General Assembly of the United Nations Organisation on 20 Nov 1989, is one of the most important international acts providing the guiding orientation that the private life of the minor enjoys a special protection which is dependent on the principle of the best interest of the child[1]. Following are Articles 3/1, 16/1 and 40 (b) of this Convention, sanctioning that: “Article 3/1. “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. "; “Article 16/1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child has the right to the protection of the law against such interference or attacks.” and Article 40 (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: ...(vii) To have his or her privacy fully respected at all stages of the proceedings.

     

    30. Directive 95/46/EC of the Parliament and Council dated 24 October 1995 On the protection of individuals regarding the processing of personal data and freedom of transferring the data" "On the protection of individuals with regard to the processing of personal data and on the free movement of such dataOfficial Journal L 281, 23/11/1995 P. 0031 - 0050. This Directive deals, in its Articles 2, 7 and 8[2], with the concepts of personal data, the consent given to having the data used, as well as the obligations of the states to take care of observing their protection.

     

    31. The Convention for the protection of individuals with regard to automatic processing of personal data, 1981, (The Convention for the protection of individuals with regard to automatic processing of personal data, 1981 Council of Europe) provides for the protection of the individual privacy right taking account of the increase of cross-border transfers of personal data as a consequence of automatic processing of data[3].

     

    32. The Regulation of the European Council and Parliament 45/2001 of 18 December 2000 On the protection of individuals connected to the processing of personal data by the institutions and bodies of the Community and their free transfer. (REGULATION (EC) No 45/2001 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data) provides for some rules connected to the data being obtained out of the criminal proceedings against individuals. Despite not being specified rules for minors, these rules are equally applicable for each individual[4].

     

    33. Directive 2002/58/EC of the European Council and Parliament dated 12 July 2002 connected to the processing of personal data and privacy in electronic communications. (concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) deals with the orientation of the member states taking care, by way of legislative measures, to ensure the protection of personal data against their use through internet[5].

     

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

    [2] Link: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31995L0046

    [3] Linku: http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/108

    [4] Link: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:008:0001:0022:en:PDF

    [5] Link: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32002L0058 

• International standards/International references/Best examples

  Reports, opinions, recommendations and statements 

  34. In 1980, to the effect of establishing an overall protection system for the personal data in the entire Europe, Organization for Economic Cooperation and Development (the Organization for Economic Cooperation and Development(OECD) issued: "Recommendations of the Council Concerning Guidelines Governing the Protection of Privacy and Trans-Border Flows of Personal Data[1]".

   

  35. Guidelines on the protection of individuals with regard to the processing of personal data in a world of Big Data of Consultative Committee of the Convention for the protection of individuals with regard to automatic processing of personal data (T-PD) [2].

   

  36. Opinion 03/2016 on the evaluation and review of the Privacy Directive (2002/58/EC) Adopted on 19 July 2016[3].

   

  37. Opinion 02/2016 on the publication of Personal Data for Transparency purposes in the Public Sector, Adopted on 8 June 2016[4].

   

  38. Statement on the 2016 action plan for the implementation of the General Data Protection Regulation (GDPR) adoptuar në 2 shkurt 2016[5], Rekomandation No. R (92) 1 i Komitetit të Ministrave "On the use of analysis of deoxyribonucleic acid (DNA) within the framework of the criminal justice system[6] (adopted on 10 February 1992).

   

  Decisions of the European Court of Human Rights 

  39. Case of S. and Marper v. The United Kingdom examined on 4 December 2008, [7]This trial had to do with the data obtained out of the fingerprints and DNA samples of convicted persons, as well as their processing in the future as personal data connected directly to the privacy. ECHR highlights that: "68. The Court notes at the outset that all three categories of the personalinformation retained by the authorities in the present case, namely fingerprints, DNA profiles and cellular samples, constitute personaldata within the meaning of the Data Protection Convention as they relate to identified or identifiable individuals. The Government accepted that all three categories are “personal data” within the meaning of the Data Protection Act 1998 in the hands of those who are able to identify the individual. 69. The Convention organs have already considered in various circumstances questions relating to the retention of such personal data by the authorities in the context of criminal proceedings. As regards the nature and scope of the information contained in each of these three categories of data, the Court has distinguished in the past between the retention of fingerprints and the retention of cellular samples and DNA profiles in view of the stronger potential for future use of the personalinformation contained in the latter (see Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006-XV). The Court considers it appropriate to examine separately the question of interference with the applicants’ right to respect for their private lives by the retention of their cellular samples and DNA profiles on the one hand, and of their fingerprints on the other. ... 81. Having regard to these findings and the questions raised in the present case, the Court considers it appropriate to review this issue. It notes at the outset that the applicants’ fingerprint records constitute their personal data (see paragraph 68 above) which contain certain external identification features much in the same way as, for example, personal photographs or voice samples. However, in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained".

   

  40. Case T v United Kingdom, (Application no. 24724/94) [8]provides: "85. It follows that, in respect of a young child charged with a grave offence attracting high levels of media and public interest, it would be necessary to conduct the hearing in such a way as to reduce as far as possible his or her feelings of intimidation and inhibition. In this connection it is noteworthy that in England and Wales children charged with less serious crimes are dealt with in special Youth Courts, from which the general public is excluded and in relation to which there are imposed automatic reporting restrictions on the media (see paragraphs 28 and 29 above). Moreover, the Court has already referred to the international tendency towards the protection of the privacy of child defendants (see paragraph 75 above). It has considered carefully the Government's argument that public trials serve the general interest in the open administration of justice (see paragraph 81 above), and observes that, where appropriate in view of the age and other characteristics of the child and the circumstances surrounding the criminal proceedings, this general interest could be satisfied by a modified procedure providing for selected attendance rights and judicious reporting.

   

  41. Case B. AND P. v. THE UNITED KINGDOM (Applications nos. 36337/97and 35974/97)[9] provides "37. However, the requirement to hold a public hearing is subject to exceptions. This is apparent from the text of Article 6 § 1 itself, which contains the provision that “the press and public may be excluded from all or part of the trial ... where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. Moreover, it is established in the Court’s case-law that, even in a criminal-law context where there is a high expectation of publicity, it may on occasion be necessary under Article 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice (see, for example, Doorson v. the Netherlands, judgment of 26 March 1996, Reports 1996-II, p. 470, § 70; Jasper v. the United Kingdom [GC], no. 27052/95, § 52, 16 February 2000, unreported; Z v. Finland, judgment of 25 February 1997, Reports 1997-I, p. 348, § 99; and T. v. the United Kingdom [GC], no. 24724/94, §§ 83-89, 16 December 1999, unreported). 38. The proceedings which the present applicants wished to take place in public concerned the residence of each man’s son following the parents’ divorce or separation. The Court considers that such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment. 39. The applicants submit that the presumption in favour of a private hearing in cases under the Children Act should be reversed. However, while the Court agrees that Article 6 § 1 states a general rule that civil proceedings, inter alia, should take place in public, it does not find it inconsistent with this provision for a State to designate an entire class of case as an exception to the general rule where considered necessary in the interests of morals, public order or national security or where required by the interests of juveniles or the protection of the private life of the parties (see Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Series A no. 80, p. 42, §§ 87-88), although the need for such a measure must always be subject to the Court’s control (see, for example, Riepan v. Austria, no. 35115/97, § 34, ECHR 2000-XII). English procedural law can therefore be seen as a specific reflection of the general exceptions provided for in Article 6 § 1.46. The Court further recalls its above finding that, in view of the type of issues requiring to be examined in cases concerning the residence of children, the domestic authorities were justified in conducting these proceedings in chambers in order to protect the privacy of the children and the parties and to avoid prejudicing the interests of justice. It agrees with the Government that to pronounce the judgment in public would, to a large extent, frustrate these aims."

   

  [1]http://www.oecd.org/sti/ieconomy/oecdguidelinesontheprotectionofprivacyandtransborderflowsofpersonaldata.htm 

  [2] Linku: https://rm.coe.int/t-pd-2017-1-bigdataguidelines-en/16806f06d0. Visited for the last time on 04.09.2017

  [3]http://ec.europa.eu/justice/dataprotection/article29/documentation/opinionrecommendation/files/2016/wp240_en.pdf. Visited for the last time on 04.09.2017

  [4]http://ec.europa.eu/justice/dataprotection/article29/documentation/opinionrecommendation/files/2016/wp239_en.pdf. Visited for the last time on 04.09.2017

  [5]http://ec.europa.eu/justice/dataprotection/article29/documentation/opinionrecommendation/files/2016/wp236_en.pdf. Visited for the last time on 04.09.2017

  [6] https://rm.coe.int/16804e54f7

  [7]http://hudoc.echr.coe.int/eng#{"fulltext":["personaldata"],"documentcollectionid2"]}  Visited recently on 03.09.2017.

  [8] https://hudoc.echr.coe.int/eng#{"fulltext":["T v United Kingdom"],

  [9] https://hudoc.echr.coe.int/eng#{"fulltext":["B. AND P. v. THE UNITED KINGDOM"].

• Legislative material
  42. Analysis of Justice System in Albania, June 2015, drafted by the Senior Experts Group at the Ad Hoc Parliamentary Committee for Justice System, highlights: ‘The publication of the judicial decisions creates the problem of exposing the personal data and in some instances, the sensitive data 145F146. The instruction ‘On processing and publishing the personal data in the judicial system’ 146F147 provides for that the personal data of the parties, of third persons, witnesses and experts summoned to the case under adjudication, should be submitted in initial letters or cyphered 147F148. Actually, having an appropriate guarantee for the protection of personal data and business data in the (intermediary) decisions being published in courts, still consists a problem for the entire Albania. The parameters of the publication of such decisions are not regulated by law, while they leave room for concerns regarding the protection of data. From this perspective, the Commissioner for the Protection of Personal Data, based on the Recommendation no 8, dated 05.06.2013 asked the courts to make all the appropriate arrangements to make anonymous and protect the personal data of parties being involved in legal proceedings, prior to them being published. Moreover, the Commissioner has issued the Instruction no 15, dated 23.12.2011, thus setting out clear rules connected to the way how the personal data in the judicial system have to be managed. There is generally a lack of integrated laws, which would make possible the public access to the activity of the courts to the effect of having the personal data protected’[1].

   

  43. The explanatory report on the draft law ‘Code of Criminal Justice for Minors’, provides for: ‘A friendly justice for children implies guaranteeing the respect and effectiveness of giving effect to the entire rights of the child, at the highest level possible in the justice system of a country. For this, there is specifically needed that justice be accessible, adjusted to the age groups, fast and focused on the needs and rights of children. This includes the right to due process, the right for participating at and understanding the procedures, the right to observe the private and family life, as well as the integrity and dignity[2].

   

  44. Annual report of the Commissioner for the protection of the personal data to the Parliament, 2016[3], Visited for the last time on 03.09.2017, highlighting that: ‘The mission, purpose of thework and the activity of the Office of the Commissioner is guaranteeing that the public gets acquainted with the public information, creating insights on the situation of the state and society and the legitimate processing of personal data, while respecting and guaranteeing the fundamental human rights and freedoms, specifically, the right to information and the right to have privacy preserved.

   

  [1] http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf Visited for the list time on 03.09.2017

  [2]https://www.parlament.al/wp-content/uploads/2017/01/RELACION-KIODI-I DREJTESISE-PER-TE-MITURIT-NE-RSH-Resized.pdf Visited for the list time on 03..09.2017.

  [3] http://www.idp.al/wp-content/uploads/2017/02/Raporti_Vjetor_2016.pdf

• Related articles
  45. Article 35 of the Constitution of the Republic of Albania[1], Visited recently on 04.09.2017, adopted by law no. 8417, dated 21.10.1998 of the People’s Assembly, approved by the referendum dated 22.11.1998, amended by law no 9675, dated 13.1.2007, amended by law no 9904, dated 21.4.2008, amended by law no 88 / 2012, dated 18.09.2012, amended by law no 137 / 2015, dated 17.12.2015, amended by law no 76/2016, dated 22.07.2016, in the first paragraph, declares that ‘No one can be obliged, unless provided for by law, to make public data connected to their own person’. 

   

  46. Law no 9887, dated 10.03.2008, amended by law no 48/2012 “On the protection of personal data[2]” Visited recently on 04.09.2017, containing the regulation in its articles, Article 3, par 1, 4, 8, 10 and 12 of the law no 9887, dated 10.03.2008, amended by law no 48/2012 ‘On protection of personal data’ the meaning of the concepts ‘personal data’, ‘sensitive data’, ‘processing the personal data’, ‘processor’, and others; Article 7, par 2 and at Article 1 of the law no 9887, dated 10.03.2008, amended by law no 48/2012 ‘On protection of personal data’ dealing with the processing of sensitive data, as well as the exceptions which may be created to the appropriate extent, as long as they are intertwined with the right of the protection of personal data and the rules administering the freedom of information.

   

  47. Criminal Code of the Republic of Albania, approved by the law no 7895, dated 27.1.1995, as amended[3], refers to the privacy and infringement of the right connected to the it, in Articles (121, 121/a, 122, 123, 313/b), regulating respectively: unfair intrusions with the private life, persecution, divulging personal secrets and hindering or infringing the secrecy of correspondence, banning, granting and declaring the data against the law.

   

  [1] Link: https://www.parlament.al/wp-content/uploads/2015/10/kushtetuta-perditesuar-1.pdf

  [2] Linku: http://www.arsimi.gov.al/al/program/mbrojtja-e-te-dhenave-personale/ligji-per-mbrojtjen-e-te-dhenave-personale

  [3] http://komentarielektronik.magjistratura.edu.al/en/eli/fz/1995/7895. Visited for the last time on 04.09.2017

• Sublegal acts
  48. Decisions of the Commissioner regarding the protection of personal data:

  • Decision no 4, dated 27.12.2012 "On determining the instances of exemption from the obligation of notification of the personal data being processed’;
  • Decision no 5, dated 27.12.2012 "On some addenda and amendments to the Decision no 2, dated 10.3.2010 ‘On determining the procedures of administration of the registration of data, entering the data, processing and extracting them’;
  • Decision no 6, dated 05.08.2013 "On determining the detailed rules for protection of the personal data’;

  http://www.publeaks.al/komisioneri-per-te-drejten-e-informimit-dhe-mbrojtjen-e-te-dhenave-personale/

  http://www.idp.al/vendime-2/

  • Instruction no 44/2016 of the Commissioner ‘On the conditions, criteria of processing and timing for storing the personal data in compliance with the Law no 60/2016”, obligation provided for in the law ‘On protection of whistle blowers’;
  • Joint Instruction no 515, dated 27.09.2016 of the Minister of Interior and Commissioner ‘On the protection of the personal data y the Border Guards’, implementing the law no 71/2016 “On border control”.
  • Instruction no 21, dated 24.09.2012 ‘On setting out the rules for Preserving the Security of the Personal Data being processed by the Major Controllers’.
  • Instruction no 45, dated 31.10.2016 “On an amendment to the Decision no 3/2010 ‘On processing the personal data in the video surveillance system in buildings and other premises’.
  • The Instruction ‘On determining the controllers being bound to the obligation to notify the Office of the Commissioner on the processing of personal data, wherefore they are responsible, for the first time or where the amendment to the processing notification situation is required’.
  • Instruction ‘On processing the sensitive data and obtaining the authorisations’.

  https://www.parlament.al/wp-content/uploads/2017/03/Raporti-vjetor-2016-derguar-ne-kuvend.pdf

  http://www.publeaks.al/komisioneri-per-te-drejten-e-informimit-dhe-mbrojtjen-e-te-dhenave-personale/

• Decisions

  Constitutional Court Decisions 

  49. Decision no 16, dated 11.11. 2004 of the Constitutional Court is the sole decision dealing with the personal rights and the right to privacy in a broad sense, however, connected to Article 21 with the terminology being used in this Article. This decision highlights: ‘The Constitutional Court holds that for the protection of this right and for reaching the conclusions over the case under adjudication, it is of specific importance to define the notion of the private life. It is to be highlighted that this notion does not have an exhaustive nature. It has extended increasingly not only by way of the case law of the ECHR, but also due to the differentiated legal and case-law developments of the states party to the ECHR. However, it is generally admitted that the right to respect privacy in its essence should ensure for the individual a space, within which he can develop and consolidate his personality independently. Certainly, hereunder falling is the development or preservation of the relations with other people to a certain extent. Thus, the respect to privacy requires in principle the non-intrusion with the decisions that the individual is making regarding his way of life. The protection of the private and family life is in our constitution given effect by way of some provisions, specifically Article 35 (protection of personal data), Article 36 (freedom and secrecy of correspondence), Article 37 (inviolability of residence), Article 53 (protection of marriage and family), etc. Regarding the case under adjudication, the Constitutional Court evaluates that it is necessary to analyse Article 35 of the Constitution, where, in its first paragraph, it is declared that ‘No one can be obliged, unless provided for by law, to make public data connected to their own person’. Certainly, even in this case, the purpose of the constitution-makers was specifically to guarantee the necessary space within which, the individual could develop his personality independently. In this framework, it is the right of the individual to decide on the way and extent of his presentation as a person to the others and to the public at large. It is of primary importance to highlight that ‘by way of data relating to their person’ is to be understood primarily and mainly the data of sensitive character, such as the racial and ethnic origin, convictions, political affiliations, religious conviction, health situation, sexual life and criminal record (see Article 2/b of the Law no 8517, dated 22/07/1999 ‘On the protection of personal data’) the data collected legitimately by the state competent authorities, etc. "
• Literature

  "Resource Guide National Juvenile Data NACJD Linku: http://www.icpsr.umich.edu/icpsrweb/content/NACJD/guides/ncjd.html, Visited recently on 03.09.2017.

  US Department of Justice. "Juvenile Justice" Prepared by the Mational Institute of Correction, NIC Information Center Date created January 2014, Updated May 2017 Accession No. 027879. Linku: https://s3.amazonaws.com/static.nicic.gov/Library/027879.pdf. Visited for the last time on 03.09.2017

  Nancy E. Down "A new juvenile Justice System" 2015 https://books.google.al/books?isbn=1479898805 Visited for the last time on 03.09.2017.

  Costantin Stefanou and Elen Xsanthaki "Towards an European Criminal Record" 2008. https://books.google.al/books?isbn=1412970121, Visited for the last time on 03.09.2017.

  Barry Krisberg "Juvenile Justice: Redeeming our children" 2005, https://books.google.al/books?isbn=0761925015, Visited for the last time on 03.09.2017.

  John T. Whitehead and Steven P. Lab "Juvenile Justice: An Introduction" 2012, https://books.google.al/books?isbn=1455778923, Visited for the last time on 03.09.2017.

  Donald G. Campell "Juvenile Justice case proceesing" 2007, https://books.google.al/books?isbn=1462821103, Visited for the last time on 03.09.2017.

  Trevor Buck "International Child law" 2014, https://books.google.al/books?isbn=1135970181, Visited for the last time on 03.09.2017.

  George Miller "Reforming Juvenile Justice system to improve the children's life" 2010, https://books.google.al/books?isbn=1437936369, Visited for the last time on 03.09.2017.

  Ted Rubin "Juvenile Justice, Policies, Practices and Perogrames" Vol I, 2003, https://books.google.al/books?isbn=1887554335. Visited for the last time on 03.09.2017.

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