Table of Content

• Comments
  • Purpose
    1. Article 37 aims at taking protective measures to ensure the life and health of the child victim or witness of a criminal offence by creating the proper “distance” from the criminal elements charged with committing the criminal offence.

     

    2. Article 37 aims at revealing, at the same time, the duties of the competent bodies to make proper care in identifying the risk.

     

    3. The objective of Article 37 is to identify the nature and extent of the risk and therefore it divides the level of risk to the child victim or witness in two levels and, subject to them, it determines two ways of initiating the process for taking protection measures (i) at the request of the prosecutor, the judicial police or the Unit for Protection of the Rights of the child or, (ii) mainly by the court, when the latter observes such risk alone.
  • Scope
    4. Article 37 is organized with a simple two-item structure in which the institutions, the procedural phases and the protection measures are divided in a format with three answers: when a measure may be given, who may give a measure and what measure and procedure are followed. Thus, the first item deals in general with the list of protective measures for the life and health of the child victim or witness and the bodies that have competence in taking them. These measures are considered feasible at any phase of the process. The second item of Article 37 is organized as an exception rule referring to letters “b”, “c” and “d” of paragraph 1 of this Article and addresses the cases when the court acts ex officio.

     

    5. Article 37 has a structure that follows the reference line in letter b) of paragraph 1. Such reference nature in the structural sense aims to tell to every implementer of the CCJC the manner in which this Article should be read in parallel with the provisions of the legislation in force on measures against violence in family relations, that is the Law No. 9669, dated 18.12.2006 “On Measures against violence in family relations”, as amended by Law No. 9914, dated 12.05.2008 and Law No. 10 329 dated 30.09.2010, particularly Articles 10-12, but not only.

     

    6. Article 37 in paragraph 2 has a refraction of the rules provided in paragraph 1 regarding the procedural aspect of the initiation of issuing the protective measure, which provides that only in exceptional cases the court acts primarily without the need for a request by the procedural bodies anticipated. Such exception relates only to the risk directly noted by the court and relates to the measures provided in letters “b”, “c” and “ç” of this Article. As a conclusion, in the structure of Article 37 of the CCJC, it is initially consolidated the concept of what protective measures are, when they are taken and how they are required and then it concludes with the obligation of the court to operate mainly on its own initiative in the event of a risk.
  • Comments
    7. It is important that the Article provides protection at any phase of criminal proceedings. In addition, the Article also promotes the taking of measures and their enforcement not only by the court and upon a court decision, but also by the bodies defined in paragraph 1 thereof in those activities related to the nature of the work, the phase of proceedings and their competence. An illustrative example is the letter a) of paragraph 1. The first level of protection relates to the risk that may be evidenced during the phase when the process is under investigation, during the child’s questioning, his/her confrontation with experts, psychologists, and professionals, a process attended by a prosecutor, a judicial police officer, or a representative of the Unit for Protection of the Rights of the child. When the latters notice and find that the child is in the condition for taking one of the measures under paragraph 1 letters b), c), ç), d) because he/she feels frightened, threatened, endangered and does not freely express himself/herself, but at the same time observe that the danger is real and may affect the life and health of the child, they are obliged to refer a request to the court. According to the cases provided in letter d) the prosecutor, the judicial police officer or the representative of the Unit for Protection of the Rights of the child for taking a protection measure may address the court or, as the case may be, to the authority that conducts the procedural action. Article 37, paragraph 1 also introduces the cases and the process of initiating the process for taking a protection measure for the child victim or witness by referring to the request. From a formal point of view, the request must be made in writing or, if made verbally, it must be recorded in the minutes of the hearing or the process where it is expressed. Thus, item 1 of Article 37 includes the measures related to the protection established by the court which is put into motion upon a request made by the prosecutor, the judicial police or the Unit for Protection of the Rights of the Child.

     

    8. Item 1 of Article 37 has a list of five measures which have different nature from each other. The measure provided in letter a) is of a concrete nature and should establish the avoidance of any direct contact between the child victim or witness and the accused person at any stage of the proceedings. Such measure is taken when the degree of intimidation, fear, panic and physical security of the child is endangered by the actions, words and gestures of the accused person. Specifically, the language of threat, hate, rage of the accused person to the victim and the witness are the main indicators of the risk.The term "direct contact" means the physical encounter of the witness or victim with the accused, visible confrontation by both parties, the appearance of recognition from both parties, participation in the judicial process where the statement is given in the presence of the defendant, hearing the statements of the witness in presence of the defendant in the court hearing, verbal communication of the parties, and other similar to these. Direct contact is such as allowing the parties to listen to each other's words and watch any moves they make in real time and other contacts verbal of physical, due to walikng in the same corridor or staying in the same environment.

     

    9. This Article gives an active role to the court which operates not only with the request of the procedural and interested bodies, but also mainly for issuing the necessary orders such as issuing the "restriction order" or taking security measures as " imprisonment "or" house arrest "for the purpose of keeping the accused away from the minor victim or witness, or to place the minor victim or witness in a safe place on whose premises it will remain secret.

     

    10. The list of measures set out in letters b), c) and ç) of item 1 of Article 37 is drawn up in the form of three different measures that have anticipated the procedural steps to be followed. So, in this manner, the legislator has explained the concrete measure, and the action to be taken by the proceeding body. Thus, letter b) of item 1 of Article 37 provides the imposition of a measure ordering the restriction of the movement and residence of the accused person and provides the form of the request formatted as a “restriction order” at the court, the manner and the time of registration and its protocol. Letter c) of item 1 of Article 37 provides the security measures of imprisonment or house arrest with the purpose of isolating the accused person and determining the form of the related request. The arrest measure distances the accused person from the victim or witness and facilitates the realization of the prohibition regarding the contact with the child. Letter ç) of item 1 of Article 37 provides the measure for the maintainance of confidentiality relating the location of the child and the form of request for the taking of such protective measure. 

     

    11. The letter d) of paragraph 1 of Article 37 is of a non-exhaustive and flexible nature, because it allows an endless and unspecified list of measures, not expressly provided in Article 37, which may be assessed to be taken by the authorities under paragraph 1 of Article 34 or at their request by the court when it considers that these “other” protective measures are considered appropriate and establishes the competent authorities to carry them out.

     

    12. The term “risk” is used in paragraph 1 of Article 37. The term “state of danger” is analyzed in Article 3, paragraph 6 of Law No. 10 173, dated 22.10.2009 “On the protection of witnesses and collaborators of justice”, amended by law no. 10461, dated 13.9.2011. According to this law, “a situation of danger” is the actual, concrete and serious situation, because of which health and life are at risk, as a result of the testimony of the witness or justice collaborator in criminal proceedings for criminal offences. In addition, the Joint Instruction of the Ministry of Justice, the General Prosecution Office and the Ministry of Interior “On the conditions, criteria and procedures for the imposition of provisional, exceptional and special protection measures for witnesses and justice collaborators”, dated 01.07.2005 provides terms related to the most accurate determination of the degree of risk. According to the items of such Instruction, we have the following explanations: “5. Current situation of danger” means an evolving situation that continues to endanger the life, health or property of a witness or a justice collaborator. The situation of risk should not have passed, nor even supposed to happen in the future 6. A concrete situation of danger means the situation when particular elements of such risk have begun to appear and may be escalated into concrete actions against a witness or collaborator 7. Serious situation of danger means that situation when the life, health or property of a witness or collaborator are threatened so that, if the appropriate measures were not taken, an important damage would have been caused.

     

    13. By means of the expression “to the extent possible, the provisions of the legislation in force on measures against violence in family relations” provided in item b) of paragraph 1 of Article 37, the lawmaker attempts to use the analogy between the “protection order” and the “immediate protection order” issued by the court in the case of domestic violence with the “restriction order” issued by the court in the case of taking the protection measure in order to guarantee the safety of the child witness or victim. The lawmaker uses the phrase “to the extent possible”, because the analogy is related to the fact that in terms of nature and purpose they are the same (it is the protection of individuals from the violence of other individuals) that in the case of domestic violence is a civil process, while in the case of Article 37 of the CCJC, we are in a criminal proceeding. However, each of them has its own specifics, so when referring to the Law on Domestic Violence, Article 37 of the CCJC mainly refers to Articles 10-12 of this law[1].

     

    14. The expression “for the keeping of the secret of the location of the child” is used in letter ç) of item 1 of Article 37. Such measure provided in this Article may be seen in parallel with the protective measures provided for the witnesses of justice anticipated by the Law No.10 173, dated 22.10.2009 “On the protection of witnesses and justice collaborators” (amended by Law No. 10461, dated 13.9.2011). For effects of the security, the place of residence of the child witness may be changed. Articles 12 and 27 of Law 10173/2009 deal with the change of the witness’s place of residence as a protective measure. In point ç) of paragraph 1 of Article 37, the expression " keeping of the secret of the location of the child" is used. This measure envisaged in this article can be seen in parallel with the protection measures provided for the witnesses of justice, provided by Law No.10 173, dated 22.10.2009 "On the protection of witnesses and collaborators of justice", (as amended by Law No. 10461, dated 13.9.2011). For security effects, the place of temporary or permanent residence of the child can be changed. In Articles 12 and 27 of Law 10173/2009 the change of the place of residence of the witness is treated as a measure of protection.

     

    15. Paragraph 1, letter d) of Article 37 provides the possibility, where appropriate, of the prosecutor, the judicial police or the Unit for the Protection of the Rights of the child to take or require from the competent authorities other protective measures deemed “appropriate”. As noted, letter d) of item 1 of Article 37 has a non-exhaustive nature. Its purpose is the flexibility of the bodies mentioned, so that they may have possibilities for measures which, although not explicitly listed in Article 37, may be evaluated to be undertaken by them or by the court on a case-by-case basis when it considers that these other protective measures are considered appropriate and require the competent authorities to assist them in carrying them out. Such appropriate measures should be analyzed towards the best interest of the child, including herein the case of a child victim. For this, the analysis extends over: the nature of the offence, the circumstances in which the criminal offence was committed, the dangerousness of the offence and its author, the safety of the child witness or victim, the history of the child, the possibility of the child’s rehabilitation and reintegration in society. In order to analyze the term “appropriate”, we can start from the aim of respecting the principle of the best interest of the child, so as to determine the appropriate place where he should stay, the most appropriate way to be questioned etc. Inappropriate will be considered all the measures that if given to the child witness or victim harm his physical and mental health, are difficult to be accomplished, impede the processes of education and development, etc. Paragraph 2 of Article 37 anticipates the case when the court takes the measure of protection “ex officio” without the need for a preliminary request from the prosecutor, the judicial police or the Unit for the Protection of the Rights of the Child, when noting a danger to the child victim or witness. Only measures for the preservation of confidentiality of the child’s location, issuance of the restriction order, for imprisonment or house arrest may be taken mainly. Pragraph 2 of Article 37 passes to a second higher level of protection when the risk is obvious and huge, and the case is tried. In such a case, if the court notes such a risk, it must take protective measures by itself “ex officio”. The selection of the active role of the court by the lawmaker has been made to accelerate the procedure for taking a protective measure, when the danger is real, straightforward, apparent, serious, occurring immediately or is of the highest degree, and is evidenced during this phase where the influence of the accused person on the victim is evident. The Court may also act mainly in the case when, although it has not begun the questioning of the child, notes that the accused person with his attitude and conduct would pose a risk to the child witness or victim.

     

    [1] Article 10 of the law no. 9669/2006 “On measures against violence in family relations”, as amended. Some of the protective measures against domestic violence include: “a) immediately ordering the defendant (the perpetrator) to refrain from committing or threatening to commit an act of domestic violence against the petitioner (victim) or other family members of the victim as defined in Article 3, item 3 of this law or as named in the order; b) immediately forcing the defendant (perpetrator) to refrain from harming, harassing, contacting or communicating directly or indirectly with the victim or other members of their family as defined in article 3 point 3 of this law or as named in the order; c) removing immediately the defendant (perpetrator) from the residence for a certain period of time, determined in the court order and restricting their re-entrance without court authorization; ç) prohibiting immediately the defendant (perpetrator) to be within a certain distance to the victim or members of their family as defined in article 3 point 3 of this law or as named in the order; d) immediately forbidding the defendant (perpetrator) to approach/get near the house, workplace, the original family residence or the future couple‘s residence or that of other persons and moreover the children‘s school or any other place commonly frequented by the victim, unless this happens for work-related reasons; dh) immediately placing the victim and the minors in temporary shelters always keeping in mind the best interest of the child; e) limiting or prohibiting the defendant (perpetrator) to see the victim‘s child based on appropriate conditions; ë) prohibiting the defendant (perpetrator) to enter or stay in the temporary or permanent residence of the victim, or in any part thereof, regardless of any property or possession rights the perpetrator may have over these; f) ordering a court authorized person (member of the police or bailiff) to accompany the victim or the defendant (perpetrator) to the victim‘s residence and to oversee removal of their personal belongings; g) ordering the law enforcement officers to seize any weapons belonging to the perpetrator, found during police checks, or ordering the perpetrator to surrender any weapons belonging to them; gj) ordering the defendant (perpetrator) to allow the victim to possess the commonly used residence or part thereof.

  • Historic context
    16. In the Albanian legislation, it is the first time provided at the level of a Code an adjustment such as that of Article 37 of the CCJC, specifying the principle of protection of the security of the child witness and victim in the process of criminal justice for children.

     

    17. Before the CCJC, in the general aspects of the protection of witnesses, it was adopted the Law No. 10, 173, dated 22.10.2009 “On the protection of witnesses and justice collaborators” (amended by Law No. 10461, dated 13.9.2011), which stipulates that for the effects of security, the residence of the child witness may be changed. Articles 12 and 27 of Law 10173/2009, deal with the change of the witness’s place of residence as a protective measure.

     

    18. Before the CCJC law, the Criminal Procedure Code of the Republic of Albania adopted by Law No. 7905, dated 21.3.1995, amended; regulated the position of the child witness and the measures for his protection, provided in Article 103, paragraph 4: «It is prohibited to publish personal data and photographs of minor defendants and witnesses, accused or injured by the criminal offence. The court may allow the publication only when the interest of the minor requires so or when the minor has reached the age of sixteen. Article 361/a provides the Questioning of minor witnesses (Amended by Law no. 9276, dated 16.9.2004 and the article is amended by Law No. 35/2017, dated 30.3.2017): provides for: “Witness under the age of 14 is questioned without the presence of the judge and the parties, at the premises where the minor is located, when possible, by means of audio-visual tools. Questioning is conducted through a psychologist, an educator or another expert and, if this is not contrary to the interests of the trial or interests of the child, the parents or the legal guardian may be present during the questioning. The parties may request, and the court may decide ex officio that the minor be questioned by the judge in the presence of an expert. The minor may be questioned again only in specific cases and at the same way. 2. The questioning of a minor witness aged 14 to 18 years is conducted by the panel presiding judge. During the questioning, special care is given to avoid harmful consequences on his mental health, especially if the minor is a victim of the criminal offence. In compliance with the circumstances, the questioning may be conducted as foreseen in paragraph 1 of this article. 3. The panel presiding judge, when questioning a minor witness up to 14 years of age, shall not observe the rule on the warning on the obligation and legal responsibility of the minor to tell the truth. This exemption shall apply also to other minor witnesses, if the presiding judge deems that he is not capable of understanding the consequences of oath-taking. In such cases, the panel presiding judge shall give to the minor the possibility to tell the truth and the court shall proceed with the hearing of the minor’s testimony. 4. When the minor is heard during investigations and his statements are recorded, pursuant to paragraph 4 of article 58/a of this Code, they are used as evidence in trial, if the defendant and the defence lawyer give their consent. The statements of the minor may be used as evidence even if the defence lawyer has been allowed to question the minor through experts and the expert deems that the repetition of questioning may harm the psychological conditions of the minor.
  • International acts

    Resolution of 10 June 2011 on a roadmap for strengthening the rights and protection of victims, in particular in criminal proceedings;

    UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985);

    Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (2005);

    Council of Europe Recommendation (1985)11 on the Position of the victim in the Framework of Criminal Law and Procedure;

    Council of Europe Recommendation (2006) 8 on Assistance to Crime Victims, the Ref. Ares (2013)3763804 - 19/12/2013 EUROPEAN COMMISSION, DG JUSTICE, December 2013"2

    Recommendation No. (2006)8 is related to the assistance of crime victims;

    Recommendation no. R (85) 11 on the position of the victim in the framework of criminal law recommends Member States to explore opportunities to use and benefit from the advantages of mediation and reconciliation schemes RECOMMENDATION No. R (85) 11 OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON THE POSITION OF THE VICTIM IN THE FRAMEWORK OF CRIMINAL LAW AND PROCEDURE

• International standards/International references/Best examples

  Reports, opinions, recommendations and declarations 

  United Nations Model Law on Matters related to child victims and witnesses in the Criminal Process. "Justice in Matters involving Child Victims and Witnesses of Crime Model Law and Related Commentary UN, 2009,

  2011 Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

  JUSTICE GUIDANCE DOCUMENT related to the transposition and implementation of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA.

  JUSTICE GUIDANCE DOCUMENT construed Article 12 of Directive 2012/29 as follows hereunder: "ARTICLE 12 — RIGHT TO SAFEGUARDS IN THE CONTEXT OF RESTORATIVE JUSTICE SERVICES

• Legislative material

  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

• Related articles

  Law No.10 173, dated 22.10.2009 “On the protection of witnesses and justice collaborators” (amended by Law No. 10461, dated 13.9.2011). For effects of security, the place of residence of the child witness may be changed. Articles 12 and 27 of Law 10173/2009 deal with the change of the witness’s place of residence as a protective measure; 

  Criminal Procedure Code of the Republic of Albania adopted by Law No. 7905, dated 21.3.1995, amended by laws: no. 7977, dated 26.7.1995, 8027, dated 15.11.1995, no. 8180, dated 23.12.1996, no. 8460, dated 11.2.1999, no. 8570, dated 20.1.2000, no.8602, dated 10.4.2000, no. 8813, dated 13.6.2002, no.9085, dated 19.6.2003, no. 9187, dated 12.2.2004, no. 9276, dated 6.9.2004, no. 9911, dated 5.5.2008, no. 10 054, dated 29.12.2008, no. 145/2013, dated 2.5.2013, no. 21/2014, dated 10.3.2014, no.99/2014, dated 31.7.2014, no. 35/2017, dated 30.3.2017; 

  Law no. 9669/2006 "On measures against violence in family relations", as amended in Articles 10-12 provides the manner of granting measures, the cases and the like.

• Sublegal acts

  The Joint Instruction of the Ministry of Justice, the General Prosecution Office and the Ministry of Interior “On the conditions, criteria and procedures for the imposition of provisional, exceptional and special protection measures for witnesses and justice collaborators”, dated 01.07.2005 provides the meaning of the following terms: current situation of danger, concrete situation of danger and serious situation of danger relating the protection of witnesses in the criminal process.

• Decisions

  Decisions of the Constitutional Court 

  Decision no. 55, dated 21.11.1997, Decision no. 15, dated 17.4.2003 and Decision no. 31, dated 17.5.2012, adjusted the position of the child witness and the measures for his protection provided in Article 103, paragrafi 4 of the CPC; Article 165/a of the CPC which provides the case of a witness with hidden identity; Article 169, paragrafi 2 of the CPC provides the confrontation of the adult defendant with the minor victim or minor witness.”, Article 361/a of the CPC provides the questioning of the minor witness.

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  https://www.researchgate.net/publication/An_age_of_reason

  Scraton, P. and D. Haydon (2002) ‘Challenging the Criminalisation of Children and Young People: Securing a Rights Based Agenda’, in J. Muncie , G. Hughes and E. McLaughlin (eds) Youth Justice: Critical Readings, pp.311-328. London: Sage Publications. 

  http://journals.sagepub.com/doi/abs/10.1177/1362480605048942

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