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

Article 39: Special rules of questioning the child victim or witness

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1. The judge, when giving testimony may put the child victim or witness at serious risk of life or health, in accordance with the age, during trial shall ensure:

a. cross-examination of the child witness/victim by using devices that alter the image and/or voice of a witness/victim, cross-examination behind a non-transparent screen, or distant cross-examination;

b. cross-examination of the child witness/victim before a court hearing starts in the presence of the defence counsel of the child and video recording of the cross-examination of the child;

c. follow up of the process and cross-examination of the child witness or victim, when possible and appropriate by the same persons and the limitation, as much as possible of the number of cross-examinations.

2. The competent bodies shall make sure that in any case confrontation of the child victim with the accused person in the premises where the process takes place shall be avoided.

3. The court proceedings shall be held in camera when a child victim or witness is involved

4. The court, concerning the child victim or witness, according to the provisions of paragraph 1 of this article, shall make sure that:

a. the child is questioned in friendly premises and outside the court premises;

b. evidence is secured within the shortest possible period after initiation of criminal proceedings in order to avoid the negative effects deriving from a lengthy process;

c. questioning is not repeated at other trial instances in order to avoid re-victimization of the child, unless otherwise foreseen in the law;

ç. other measures deemed appropriate shall be taken.

5. The child victim and witness shall be cross-examined without delay after the reporting of facts to the respective bodies.

6. The same rules shall be applied by other competent bodies even during the cross-examination of the child victim and witness.

Table of Content

      1. The purpose of Article 39 is to establish rules that guarantee the life and health of child witnesses or victims during their cross-examination in a criminal process. It stipulates a set of rules for the provision of testimony by the child, which appear varied, but have a single purpose, which is to protect the physical and mental integrity of the child and to avoid the negative effects that result from the excessive prolongation of the process. These rules also come to the aid of the court and competent bodies. Article 39 is intended to take measures to ensure the life and health of the child victim or witness of a criminal offence through “anonymity” of a physical, technical, technological identity and personal data of a child witness or victim by the accused person.

       

      1. Article 39 also sanctions some important procedural principles. These principles aim to: make the criminal process where the child is involved a quick process so that it ends in the shortest time possible; no further questioning of the child victim/witness in other instances of the trial to avoid re-victimization; trial of the case with closed doors/in camera in order to have the least negative impact on the intimidation of the child by the public, media, and others. Additonally, article 39 aims at identifying the duties of the competent bodies so that they follow the same rules and principles set forth for the court regarding the questioning of the child witness or victim.
      1. Article 39 provides a list of technical measures to ensure the life and health of a child victim or witness from the risks that might threaten him/her. The separation of these measures into two separate items not only draws the attention of the competent authorities, but also makes such measures complementary to one another. Paragraph 1 of Article 39 lists three measures that protect the child during his/her testimony aiming to reduce the level of intimidation and increase the level of physical security of the child.

       

      1. Paragraphs 2 and 3 of Article 39 are of a procedural nature and set forth the principles of a trial in camera and an efficient trial, as short as possible, and other relevant procedural and important rules. Paragraph 4 of Article 39 is the continuation of paragraph 1, and refers to this by extending the list of measures. Paragraph 5 of Article 39 sanctions the rule that the questioning of a child victim and witness should be made immediately after the facts have been reported to the relevant authorities.

       

      1. Paragraph 6 of Article 39 draws attention to the interpretation by analogy, while all the competent bodies involved procedurally in the questioning of the child are subject to the same rules.
      1. The content of Article 39 follows a line that highlights the nature and intensity of the risk to the life of the child victim or witness by focusing on a “serious risk”, which is a prerequisite for all the technical and procedural measures contained in the provision, which should be taken by the proceeding authorities with the aim of minimizing such risk.

       

      1. The term “serious risk” is one of the forms of risk that is not specified in the text of the CCJC, but the term “risk” in the sense of the risk that threatens the child, is encountered in several provisions of this Code: Article 34, para. 1 and para. 4, letter ç; Article 37; Article 40, para. 2; Article 79, para. 2; Article 86, letter b) sub-letter i; Article 115, para. 6; Article 130, para. 5; Article 133, para. 7, letter b and para. 8. In paragraph 1 of Article 39, the phrase “serious risk” is used to highlight elements such as: level and intensity of risk, form and circumstances of risk presentation, dangerousness of the author’s offence, and the like. Any risk situation requires its seriousness, but in the case of paragraph 1 of Article 39, the lawmaker wanted to highlight this much more in order to state that the risk should be real, visible, and sensitive. TheAlthough the ‘serious risk’ is not defined in this article, its interpretation can be done through the Joint Instruction of the Ministry of Justice, the General Prosecution Office and the Ministry of Interior “On the conditions, criteria and procedures for appointing temporary, extraordinary and special measures for witnesses and justice collaborators” dated 01.07.2005 provides the terms related to the most accurate determination of the risk level that may be used for analogy of the analysis of the term “serious risk”. Thus, such instruction anticipates the meaning of actual, concrete and serious risk, namely the following: “5. A current state of risk is an evolving situation that continues to endanger the life, health or property of a witness or a justice collaborator. The state of risk should not have passed nor be assumed that it may happen in the future 6. A concrete state of risk means the situation when specific elements of this risk have begun to appear and may be escalated into concrete actions against the witness or the collaborator. 7. A serious state of risk means the situation when the life, health or property of the witness or collaborator is threatened so that, if the appropriate measures were not taken, an important detriment would have been caused to them”.

       

      1. The letters a) and b) of paragraph 1 of Article 39 deal with four technical measures that may be taken during the questioning of a child witness or victim in order to ensure his physical protection by eliminating contact with the accused person and beyond. All such measures are set by the court taking into consideration the child's age. Age dictates the choice of a technical measure that is affordable for the child’s emotional and psychological condition without affecting or influencing him/her negatively. For example, preliminary registration and testimony with modified image and voice would be a measure that could be used even for younger children who are more easily intimidated. Such measures by their very nature completely avoid the witness’s contact by the accused person, so as to conceal the identity of the witness in order to avoid any potential revenge in the future.Therefore, it is necessary that Article 39 is applied in sync with Article 361/a of CPC, respectively its para. 4, but also with article 40, 41 and 42 of the CCJC and Article 58/a para.4 of of CPC.

       

      1. Letter c) of paragraph 1 provides two rules of procedural character: the questioning of the child witness or victim by the same persons; and the limitation as much as possible the number of times for child’s cross-examination. “Questioning by the same persons” means questioning of the child witness/victim by persons who have conducted questioning before and the child has created empathy and has established a successful co-operation relationship or who considers them trusted persons. “Limitation of cross-examination repetition” and the phrase “not questioning again in other levels of adjudication” which is underlined on Article 30, para. 4 letter ‘c’ means avoiding the cross-examination repetition as this may cause emotional consequences to the child witness/victim, because it exposes them to traumatic or stressful situations and may cause them to experience them again emotionally. Repetition of the questioning may have immediate negative effects on the behavior of children and may have emotional consequences for them. This is in compliance with Directive 2011/92, respectively Article 20[1]. It is relevant to point out that these principles are in line with Article 361/a, para. 4 of CPC. Pursuant to this Article, if the lawyer or the defendant have not been present during the questioning of the minor, including the experts applying these specific technologies of interrogation and if they were not permitted to make questions (even through others as required by law), they still should give their consent for the reproduction of these recordings. Exception from this rule is only in case the expert (i.e psychologue) indicates that further questioning of the minor can harm his/her psychological conditions. This is related with the limitations of the right to defense as provided in Article 6 of ECHR. Questioning the minor after recording via video-taping and then reproduction of these materials, has been dealt with from the ECHR in the case of S.N against Sweden and other cases that we have introduced pursuant to this article together with other important cases for this comment.

       

      1. In the text of letter c) of paragraph 1, we find the terms “when possible” and “limitation as much as possible”. Both expressions aim to bring the same consequence of minimizing, reducing or deducting the number of persons attending and conducting the child’s questioning process and the number of times the child is questioned so that the process may be fast and short. “Possibility” in both cases relates to procedural, potential, physical and institutional factors. This means that the competent bodies should organize the work in such a way that the same persons attend the same process of questioning a concrete child and the questioning sessions should be organized in such a way that the right question is asked, the time is managed to the short extent possible and possibly only one session of questioning takes place to exhaust all the relevant clarifications for the criminal case. The questioning of the child, when this is possible for him/her, means questioning of the child witness/victim without doing any actions or circumstances that force him to be enforced, to sacrifice or to try out beyond his or her abilities. In addition, in paragraph 1 of this letter, it is used the phrase “when appropriate” which means that the persons participating in the cross-examination, the duration of questioning, the number of sessions for child’s cross-examination should be analyzed towards the best interest of the child, including herein the case when there is a child victim. Cross-examination of the child when appropriate means cross-examination of the child witness/victim at the appropriate moment, manner and circumstance. In order to analyze the term “appropriate”, we may start from the aim of complying with 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 question the child, the appropriate person to question the child, to list the right questions to get information with the least efforts, suffering or negative emotional experiences on the side of the child, etc. In order to better explain the term “appropriate”, we may start from the opposite. “Inappropriate” shall be considered all those procedures, questions, persons that may cause damage to the physical and mental health of the child witness or victim. (comment not considered?)

       

      1. Paragraph 2 of Article 39 provides the taking of physical measures to avoid the possibility of confrontation between the child victim and the acussed person “in all the premises where the process takes place”. The expression “in all the premises” means not only the courtroom, but also any other ancillary or main premises as final destination to go or as the starting point to leave the place where the process takes place. This will include out-of-court premises that are considered as neutral and friendly for the cross-examination of the child victim or witness. These measures may consist in the provision of accompanying, visible and camouflaged staff, in order to protect the child, and not to create or increase feelings of fear.

       

      1. Paragraph 3 of Article 39 sanctions the principle that “proceedings shall be held in camera” is a principle found in Article 340 para. 2 of CPC and in some provisions of the CCJC, such as para. dh) of Article 43,, Article 41 para. 5,  Article 89 of the CCJC, etc. The expression “proceedings shall be held in camera” means that in cases where a child is a victim or witness, he or she must be protected from the intimidation or embarrassment that may come from the presence of the public, the media, the trial participants who are not procedurally necessary to be there during the cross-examination of the child.

       

      1. The expression “is questioned in friendly premises” used in letter a) of para. 4 of Article 39 means the establishment of such an environment where the needs of the child are taken into consideration and that there are no intimidating or stressful elements to the child. For this purpose, an improvised environment with objects and equipment that are known to children in their daily lives may be improvised, objects that make them feel familiar, familiar items that enjoy the interest of children may be set up so that the child does not feel surrounded by unknown elements in content and form. The expression “outside the court premises” and outside the court environment means shifting the child’s cross-examination process physically to a familiar environment for him/her, at least a neutral one, where everything surrounding the child is known and familiar. Such a procedural adjustment is done when it is for the benefit of the child witness/victim since his/her exposure to the courtroom may bring emotional consequences to the child or hinder him/her in giving testimony. This means that the court shall evaluate on case by case basis, taking into account some limitations provided for in this Code and the CPC, when a child of a certain age and emotional maturity should be questioned in a special location determined.

       

      1. Letter b) of paragraph 4 of Article 39 provides “evidence is secured within the shortest possible period after initiation of criminal proceedings”. This is related to the fact that immediately after the offence has taken place, both the witness and the victim have the most fresh and accurate memories and experiences. In addition, over time, there may be factors that may cause children to experience a growing fear of a judicial process or they may be under the pressure of intimidation to change their sayings and testimonies. Therefore, securing evidence at court shortly after commencement of criminal proceedings brings not only revealing the truth, but also protects the minor from threats and blackmail in the future by the accused person or related persons. The “shortest” time may be read by professionals “immediately” or “without delay” after the commencement of criminal proceedings. On the other side, proof is also provided to avoid the negative effects of “prolonged criminal proceedings”. The prolongation of the process when a witness/victim is a child has some negative effects and consequences. The consequences are psycho-emotional and social. The child, over time, not only loses trust in establishing justice, but can also develop non-societal behaviors with persistent consequences. Negative effects may come because disability to manage stressful situations pushes the child to create wrong perceptions. A child may be more afraid of dealing with the situation than of the real consequences derived by the situation in which he/she is found. The child may develop behavior to escape from the present situation by damaging the truth.

       

      1. Para. 5 of Article 39 provides “The child victim and witness shall be questioned without delay after the reporting of facts to the respective bodies”. Delay in questioning may cause negative effects because child ability is limited to manage stressful or traumatic situations and may induce the minor to create wrong perceptions and convictions or be manipulated by the environment or other persons directly or indirectly. 

       

      1. Paragraph 6 of Article 39 is addressed to the competent bodies that attend the cross-examination or assist in the realization of taking of testimony by the child. Paragraph 6 clarifies that the rules provided in the other five paragraphs of Article 39 are equivalent in implementation for any representative of bodies associated with the protection of children’s rights or those of a procedural nature. This stems from the fact that for all institutions and competent authorities, the most important principle is that of the best interest of the child and this remains the same for all, so all the rules pertaining to the progress of the process should be guided by it and act equally towards any subject acting and participating in the cross-examination of the child.

       

      [1] DIRECTIVE 2011/92/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILof 13 December 2011on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA. Gjendet në: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32011L0093. 

      1. In Albanian legislation, it is the first time that it is provided at the level of a Code such a regulation as the one in Article 39 of the CCJC, specifying the principle of protecting the child witness and victim in the process of criminal justice for children.

       

      1. Before law the CCJC, the 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 16.9.2004, 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; decisions of the Constitutional Court no. 55, dated 21.11.1997, no. 15, dated 17.4.2003 and no. 31, dated 17.5.2012, regulated the position of the witness during the questioning, including the child and the measures for his protection provided in Article 165/a on “Hidden identity witness”. This Article was amended by law no. 35/2017, dated 30.3.2017.
      1. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007, CETS No. 201)[1] neni 31.

       

      1. The European Convention on the Exercise of Children’s Rights (1996, ETS No. 160)[2] neni 6.

       

      1. Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011[3] on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA.

       

      1. Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011[4] on combating the sexual abuse and sexual exploitation of children and child pornography.

       

      1. 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. 

       

      1. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”, 1985)[5]; Rregulli 13.4 dhe 11.4.

       

      1. The United Nations Guidelines for the Prevention of Juvenile Delinquency (“The Riyadh Guidelines”, 1990)[6] pika 49.

       

      1. Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (2005)[7] shih pika 19 dhe 42.

       

      1. The United Nations Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (ECOSOC Res 2005/20, 2005)[8] pika 13; 14; 31.

       

      1. The United Nations Guidelines for the Appropriate Use and Conditions of Alternative Care for Children (2009)[9] pika 6

       

      1. Resolution No. 2 on child-friendly justice, adopted at the 28th Conference of European Ministers of Justice (Lanzarote, October 2007)[10], pika 11.

       

      1. Resolution of 10 June 2011 on a roadmap for strengthening the rights and protection of victims, in particular in criminal proceedings[11].

       

      [1] https://rm.coe.int/1680084822

      [2] https://rm.coe.int/168007cdaf

      [3] http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32011L0036

      [4] http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0093

      [5] http://www.un.org/documents/ga/res/40/a40r033.htm

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

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

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

      [9] https://www.unicef.org/protection/alternative_care_Guidelines-English.pdf

      [10] https://rm.coe.int/1680694596

      [11] http://victimsupport.eu/activeapp/wp-content/files_mf/1348590476roadmap.pdf

  • Reports, opinions, recommendations and declarations 

    1. The relevant parts of Recommendation No. R (87) 20 on social reactions to juveniledelinquency, adopted by the Committee of Ministers on 17 September 1987, state as follows: “III. Proceedings against minors. 4. to ensuring that minors are tried more rapidly, avoiding undue delay, so as to ensure effective educational action’.

     

    1. General Comment No. 10 (2007) of the Committee on the Rights of the Child, dated 25 April 2007 (CRC/C/GC/10).

     

    1. 2011 Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice[1].

     

    1. 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.

     

    Decisions of the European Court of Human Rights 

    1. Case of Bocos-Cuesta v The Netherlands, Application no. 54789/00 reads as follows:

    68. The Court further reiterates that the use in evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6, provided that the rights of the defence have been respected. As a rule these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statements or at a later stage of the proceedings (see, among other authorities, Isgrò v. Italy, judgment of 19 February 1991, Series A no. 194 A, p. 12, § 34; and Lucà v. Italy, no. 33354/96, §§ 40-43, ECHR 2001-II). However, Article 6 does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a witness (see S.N. v. Sweden, no. 34209/96, § 44, ECHR 2002 V)….

    71. On this point, the Court notes that the applicant was not provided with an opportunity to follow the manner in which the children were heard by the police, for instance by watching this in another room via technical devices, nor was he then or later provided with an opportunity to have questions put to them. Furthermore, as the children's statements to the police were not recorded on videotape, neither the applicant nor the trial court judges were able to observe their demeanour under questioning and thus form their own impression of their reliability (see, a contrario, Accardi and Others v. Italy (dec.), no. 30598/02, ECHR 2005-...). It is true that the trial courts undertook a careful examination of the statements taken from the children and gave the applicant ample opportunity to contest them, but this can scarcely be regarded as a proper substitute for a personal observation of a witness giving oral evidence.

    72. As regards the reason given by the domestic courts for dismissing the applicant's request to hear the victims, namely that the applicant's interests in hearing them were outweighed by the interests of the four still very young children in not being forced to relive a possibly very traumatic experience, the Court has found no indication in the case file that this reason was based on any concrete evidence such as, for instance, an expert opinion. The Court appreciates that organising criminal proceedings in such a way as to protect the interests of very young witnesses, in particular in trial proceedings involving sexual offences, is a relevant consideration, to be taken into account for the purposes of Article 6. However, the reason given by the trial courts for refusing the applicant's request to hear the four victims cannot but be regarded as insufficiently substantiated and thus, to a certain extent, speculative.

    73. In these circumstances, the Court finds that the applicant cannot be regarded as having had a proper and adequate opportunity to challenge the witness statements which were of a decisive importance for his conviction and, consequently, he did not have a fair trial.

     

    1. Case of Blokhin v. Russia (Application no. 47152/06) 23 March 2016

    183. With regard to the applicant’s complaint that he had been questioned by the police in the absence of his guardian, a defence lawyer or a teacher, the Chamber noted that there was no evidence to support the Government’s claim that the applicant’s grandfather, his guardian, or anyone else had been present during the questioning. Moreover, having regard to his young age, it considered the circumstances surrounding the questioning to have been psychologically coercive. The Chamber further observed that the applicant’s confession to the police had been used against him in the ensuing proceedings. Thus, the absence of a lawyer while in police custody had irremediably affected his defence rights and undermined the fairness of the proceedings as a whole. There had therefore been a violation of Article 6 §§ 1 and 3 (c).

    184. Next, the Chamber noted that the applicant had had no opportunity to cross-examine S. and his mother although their witness statements were the only evidence against him and had therefore been decisive. Moreover, no efforts had been made by the authorities to secure the appearance of S. or his mother in court, nor had they made a reasonable effort to compensate for this. It therefore found that the applicant’s right to question and challenge witnesses had been restricted to an extent incompatible with the guarantees provided by Article 6 §§ 1 and 3 (d).

    205. The Court observes that it is undisputed that the applicant was taken to the police station without being told why. He also had to wait a certain amount of time before being questioned by a police officer. However, there is no indication that the applicant was in any form or manner informed that he had the right to call his grandfather, a teacher, a lawyer or another person of confidence during this period for them to come and assist him during the questioning. Nor were any steps taken to ensure that legal assistance was provided to him during the questioning.

     

    1. Case of P.S. against Germany (Application No. 33900/96)

    21. All the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, the accused must be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage (see the Van Mechelen and Others judgment cited above, p. 711, § 51; and the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 21, § 49).

    22. In appropriate cases, principles of fair trial require that the interests of the defence are balanced against those of witnesses or victims called upon to testify, in particular where life, liberty or security of person are at stake, or interests coming generally within the ambit of Article 8 of the Convention (see the Doorson judgment cited above, p. 470, § 70).

    28. Organising criminal proceedings in such a way as to protect the interests of juvenile witnesses, in particular in trial proceedings involving sexual offences, is a relevant consideration, to be taken into account for the purposes of Article 6. However, the reasons given by the District Court, in its judgment of 10 January 1994, for refusing to question S. and dismissing the applicant’s request for an expert opinion are rather vague and speculative and do not, therefore, appear relevant.

    45. As to the notion of “witness”, the Court notes that although M. did not testify at a court hearing, he should, for the purposes of Article 6 § 3 (d), be regarded as a witness – a term to be given its autonomous interpretation – because his statements, as recorded by the police, were used in evidence by the domestic courts (see, among other authorities, Asch, cited above, p. 10, § 25).

     

    1. Case S.N. against Sweden, (Application no.34209/96)

    46. In regard to the circumstances of the present case, the Court observes that the statements made by M. were virtually the sole evidence on which the courts' findings of guilt were based. The witnesses heard by the courts – M.'s mother and his schoolteacher – had not seen the alleged acts and gave evidence only on the perceived subsequent changes in M.'s personality. The District Court stated that the outcome of the case was entirely dependent on the credibility of M.'s statements and the Court of Appeal considered that this was of decisive importance in determining the applicant's guilt. It must therefore be examined whether the applicant was provided with an adequate opportunity to exercise his defence rights within the meaning of Article 6 of the Convention in respect of the evidence given by M.

    47. The Court has had regard to the special features of criminal proceedings concerning sexual offences. Such proceedings are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in a case involving a minor. In the assessment of the question whether or not in such proceedings an accused received a fair trial, account must be taken of the right to respect for the private life of the perceived victim. Therefore, the Court accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence (see Baegen v. the Netherlands, judgment of 27 October 1995, Series A no. 327-B, opinion of the Commission, p. 44, § 77). In securing the rights of the defence, the judicial authorities may be required to take measures which counterbalance the handicaps under which the defence labours (see Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 471, § 72, and P.S. v. Germany, no. 33900/96, § 23, 20 December 2001).

    48. The Court reiterates that M. never appeared before the courts. The applicant stated that he had refrained from requesting that M. give evidence in person during the hearings as, in line with long-standing practice, such a request would have been refused. While accepting that the courts were generally hesitant in letting children give evidence in person, the Government referred to a few cases where minors had actually appeared before the courts. The Court notes that these cases, decided after the applicant's conviction, concerned requests made by the public prosecutor. In view of the apparent absence of cases where counsel for the defence has successfully requested the cross-examination of a minor and noting that the parties have expressed similar opinions on the general practice followed by the Swedish courts in this matter, the Court accepts the applicant's view that, in the circumstances of the case, he could not have obtained the appearance of M. in person before the courts.

    49. However, the second police interview with M. during the pre-trial investigation was held at the request of the applicant's counsel who considered that further information was necessary. On account of the absence of M.'s legal counsel (see paragraph 13 above), the applicant's counsel was not present during the interview, nor was he able to follow it with the help of technical devices in an adjacent room. However, he consented not to be present, notwithstanding the resulting handicap to the defence, and he also accepted the manner in which the interview was to be conducted. It was open to the applicant's counsel to ask for a postponement of the interview until such time as M.'s counsel was free to attend. However, he chose not to do so. It was also open to him to request that the second interview be videotaped, which would have enabled him to satisfy himself that the interview had been conducted fairly. However, he did not avail himself of that possibility either.

    50. Furthermore, it is clear from the facts submitted by the parties that the applicant's counsel was able to have questions put to M. by the police officer conducting the interview. Having subsequently listened to the audiotape and read the transcript of the interview, counsel for the applicant was apparently satisfied that the questions he had indicated to the police officer had actually been put to M.

     

    [1] https://rm.coe.int/16804b2cf3

  •  

    1. The Justice System Analysis in Albania, June 2015, drafted by the High Level Expert Group at the Ad Hoc Parliamentary Committee on Justice System Reform.[1]

     

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

    1. 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; decisions of the Constitutional Court no. 55, dated 21.11.1997, no. 15, dated 17.4.2003 and no. 31, dated 17.5.2012 has regulated the position of the child witness and the measures for his protection, provided in Article 103, para. 4; Article 153 provides the Object and the limits of testimony; Article 165/a provides the case of a witness with hidden identity; Article 169, para. 2 provides the confrontation of the adult defendant with the child victim or the child witness; Article 340 provides the Cases of closed hearings/held in camera; Article 361 provides the rules on the questioning of witnesses; Article 361/a provides the questioning of the child witness and Article 361/b Special techniques for questioning.
    1. The Joint Instruction of the Ministry of Justice, the General Prosecution Office and the Ministry of Interior “On the conditions, criteria and procedures for appointing temporary, extraordinary and special measures for witnesses and justice collaborators” dated 01.07.2005 provides the meaning of the terms: current state of risk, concrete state of risk and serious state of risk relating the protection of witnesses in criminal proceedings.
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