Table of Content

• Comments
  • Purpose
    1. The purpose of article 38 of the CCJC is the realization of the notification of the child victim and/or witness of the criminal offence for the criminal proceeding guaranteeing his/her right to be informed. The latter is provided for in Article 34 of the CCJC.

     

    2. The object of article 38 of the CCJC is to stipulate the notification way for the child victim and/or witness for the criminal process.
  • Scope
    3. Article 38 is structured in three paragraphs, which provide for respectively: a) the rules that compel the proceeding body to realize the notification; b) the notification way; c) the subjects that have to be notified during this procedure, as well as ç) their notification form.
  • Comments
    4. Article 38 of the CCJC addresses the realization of the right of the victim and/or witness of the criminal offence to be informed, as one of the rights to guarantee the best interest of the child during the criminal process. The proceeding body should take into consideration the fact that the notification shall be carried out according to the concrete circumstances of the child, who will receive the notification, such as: the age, his/her mental and educational development, in order to have an effective notification.

     

    5. According to the meaning of this article, the proceeding body is the court, the prosecutor’s office, the judicial police, depending on the phase of the criminal proceeding, with the competence to carry out the procedural action of the child’s notification. As it is noticed, this article uses the term “proceeding” to specify exactly the competent bodies which carry out actions of this nature, narrowing in this way the circle of the “competent body”, according to the meaning of article 3, paragraph 15 of the CCJC.

     

    6. The notification is an important procedural tool. It serves to guarantee the right to be informed, realizing in this way the standard for a correct legal process during the criminal proceeding. Through the notification, the proceeding body ensures the administration of the criminal process effectively and without delays. In this way, the realization of this notification takes a special importance, according to the ways treated in article 38 of the CCJC, such as:

     a) the direct notification addressed to the child, and in this case a copy of the notification is sent to the defence counsel and to the legal representative, or

     b) the notification through the legal/procedural representative, whose meaning is provided for in paragraph 16 of article 3 of the CCJC, and in this case, a copy of the notification is sent to the defence counsel.

     

    7. Exceptional cases related to the notification rules are provided for in article 38, paragraph 2. According to this legal stipulation, there are two exceptional cases which derive from the provision of article 38, paragraph 1. The first exceptional case occurs when there is a conflict of interest between the child and the legal representative. Such a case may occur in the situation when the legal representative is accused of the involvement in the criminal offence against the child and in this case the notification cannot be delivered to the legal representative taking into consideration the fact that this way the protection of the best interest of the child would not be granted. 2. The second case is related to the situation when the child is very young and in this case the direct notification of the child cannot be carried out, because of the incapability of the child to understand correctly.   In these two exceptional cases, the notification of the child is given to the procedural representative, the psychologist and the defence counsel.  The meaning of the procedural representative is provided for in article 3, paragraph 17 of the CCJC as well as in article 3, paragraph 12 of law no. 18/2017 “On the rights and the protection of children”.

     

    8. Article 38 does not provide a stipulation regarding the content of the notification, but it ensures that the proceeding authority attends to it that this notification shall be understandable for the child victim and/or witness. The content of the notification varies and it depends on the nature of the action that is notified. It is different when the child’s notification concerns questioning the child or to set up a confrontation, or to inform the child about different decisions of the proceeding body in relation to the progress of the criminal proceeding.  In this perspective, based on article 38 of the CCJC, the proceeding body shall ensure that the international standards, which guarantee the receipt of the information by the child through the notification, are implemented. In this way, the proceeding body has to consider that the notification shall be provided  in a language understandable for the child. Therefore, the proceeding body shall consider circumstances such as the age, the educational development, the maturity and possible disabilities of the child. This means that the notification shall be carried out in the language which is understandable for the child, that is to say, if the child does not know the language used by the proceeding body or if he/she uses the language of signs. Additionally, the proceeding body shall take into consideration the fact that the notification shall be appropriate for a child with disabilities according to article no. 93/2014 “On the involvement and the accessibility of the people with disabilities”. Article 3 paragraph 9 of this law explains the meaning of people with disabilities and article 4 provides for the obligation of the state to take measures to guarantee the realization of their rights, which according to article 38, is the right to be informed and consequently the right for access to the judicial procedures. Only in this way shall the international standards be guaranteed. These standards are established in the Convention “On the rights of the People with Disabilities and the Optional Protocol” of the United Nations Organisation (UNO) concerning the access in the criminal process of the child with disabilities as well as the realization of the right of the child with disability to receive information in the criminal process. This convention has been ratified by Albania with Law 108/15.11.2012.
  • Historic context
    9. It is the first time in the Albanian legislation that such detailed rules are foreseen for the notification of the child. According to the legal regulation of the CPC, before its amendments provided for in law no. 35/2017, dated 30.03.2017, and before the CCJC entered into force, the notification of the child victim or witness of the criminal offence was carried out according to the general rules for the notification of injured persons and of the witness of the criminal offence by the proceeding body, according to the provisions of articles 132 and 134, 137, 140 of the CPC. More concretely, the notification used to be carried out in the same form and content, for the other witnesses as well as for the child, submitting the notification to the legal representative.
  • International acts
    10. Several international instruments have provided for and established that children shall be notified in person or through their legal representative, the defence counsels, ensuring them the right to be informed in a language that is understood and appropriate, thus enforcing the principle of protecting the best interest of the child. Some of the international documents which provide for the above standard are the following:

     

    11. The resolution of 2005/20 of the Economic and Social Council of the UNO (ECOSOC), in relation to “instructions in the cases of justice including child victims and witnesses of the criminal offence” July 22, 2005, point 18, paragraph VII 1 stipulates as follows: Child victims and witnesses, their parents or guardians and legal representatives, from their first contact with the justice process and throughout that process, should be promptly and adequately informed, to the extent feasible and appropriate, of, inter alia …http://www.un.org/en/ecosoc/docs/2005/resolution%202005-20.pdf Last accessed on August 31, 2017

     

    12. The Organisation of the United Nations, in its “Convention of the Rights of the Persons with Disabilities and the Optional Protocol”, December 2006, stipulates in article 13: “1. The States Parties shall ensure an effective access to the justice bodies for the people with disabilities just like the other part of the population, including appropriate procedural accommodations and according to the age, to facilitate their role as direct and indirect participants including even the role of the witness in all the legal procedures, the investigatory phases and the other preliminary stages. 2. In order to ensure the appropriate access to the justice bodies for the people with disabilities, the States Parties shall encourage the organisation of the training sessions for those people who work in the field of the justice administration, including the police and the prison staff.”

    http://www.un.org/disabilities/documents/convention/crpd_albanian.pdf Last accessed on August 31, 2017

• International standards/International references/Best examples
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• Legislative material
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• Related articles

  Article 19, paragraph 3 of the CCJC provides for that: 

  3. The child shall be entitled to the following rights at any stage of criminal proceedings: c) the right to be provided with a free of charge translator/interpreter unless they understand or speak the language used or use the sign language; 

  Article 24 provides for that: 

  The child victim and/or witness of the criminal offence shall, to the greatest possible extent, enjoy the same rights foreseen for the child in conflict with the law under this Chapter and the rights foreseen in Chapter V of this Code.

   Article 3, paragraph 16 and 17 of the CCJC provides for; 

  16. “Legal representative” is the parent, relative or child’s guardian, who participate in criminal justice proceedings involving children to protect interests of the child.
  17. The definition “Procedural representatives” concerns the person according to the meaning of the law into force on the rights and the protection of the child, who carries out the procedural representation of the child, according to the provisions of this Code. 

  Article 35, paragraph 2 of the CCJC provides for that: 

  The representative of the Unit for Protection of the rights of the child, if assigned in the capacity of the procedural representative, in cases a child victim and witness below 14 years of age, shall give consent as well for child to testify.

   Article 4 letter c¸ up to e of law no. 93/2014 dated 24.7.2014 “On the involvement and the accessibility of people with disabilities” provides for:

  ç) guaranteeing  accessibility through the avoidance of obstacles of all the kinds;  

  d) the inclusion, through which the appropriate and equal participation of people with disabilities becomes possible in all areas of life;

  h) the participation of people with disabilities through individual consultation and active inclusion of persons with disabilities and of their representative organisations, including children with disabilities;

  e) the approach in two directions to integrate as much as possible the rights of persons with limited capabilities in the general legislation and to treat (quickly? To the greatest extent?) the cases that have to be treated separately;

  f) the progressive realisation, according to which the Government takes measures to guarantee the inclusion and the accessibility of all persons with disabilities at the highest level, according to available sources, without impinging the rights that have been gained, which are in compliance with the UN Convention on the Rights of the Persons with Disabilities.

• Sublegal acts
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