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

Article 40: Special rules for cross-examining the child 14-18 years of age

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1. In addition to the rules foreseen in article 361/a of the Code of Criminal Procedure, the child over the age of 14 years give testimony when the defendant is not present. In such case, the judge orders the temporary removal of the defendant from the courtroom ensuring the mandatory presence of the defence counsel of the defendant in court proceedings.

2. The court, where appropriate, in case of application of paragraph 1 of this article, shall inform the child of the right to request the defendant to be present. If so requested by the child, the court assesses the request immediately, given the concrete circumstances, maturity of the child, risk of re-victimisation and secondary victimization and decides on the request.

Table of Content

      1. Article 40 provides for the right balance for the child of respective age group, between the collection of the evidence in the criminal process, which serves for providing justice on one side, and for guaranteeing the child’s highest interest as he/she gives the testimony on the other. More concretely, as the child gives the testimony, the court shall not impact on the child’s psychological and mental development and shall avoid his/her re-victimization and second victimization.

       

      1. Also, the second paragraph of this article provides for the procedure and the criteria that shall be considered by the court to judge, regarding the request of the child to be cross-examined in the presence of the defendant.
      1. The first paragraph of this Article refers to the general rules which are implemented for the cross-examination of the child of the age group of 14 to18 years of age, which are found in article 361/a paragraph 2 of the Criminal Procedure Code (CPC), and at the same time adds a special rule for children such as giving the testimony without the presence of the defendant. Paragraph 2 of article 40 provides for that there are cases of exception out of this special regulation. In this case, the exception is based on three steps of high importance: the obligation of the court to inform the child on his right to claim the presence of the defendant; the submission of the request addressed to the court by the defendant related to the presence of the defendant and the evaluation of the request and rendering the decision on it by the court.

       

      1. In both paragraphs, article 40 of the CCJC stipulates obligations for the competent body, which in the concrete case is the court. Firstly, these comments are related with the implementation of the general rule according to the first paragraph of article 40, and secondly, with the procedural steps that shall be followed by the court in case when the presence of the defendant is claimed, according to paragraph 2 of this article.
      1. Beyond rules provided in Article 361/a of CPC (hyperlink) and the ones provided for in article 39 of the CCJC, this article sanctions additional rules, too, through which it creates a special protection for the child victim and witness of the criminal offence avoiding his confrontation with the defendant, during the process when he is being cross-examined by the court. Also, the court guarantees the defendant’s rights, who according to the first paragraph of article 40, leaves temporarily, only during the time when the victim and/or witness child is cross-examined or gives the testimony. Meanwhile, during this time the defence counsel of the defendant shall be necessarily present in the hearing.

       

      1. According to Article 40 of CCJC, the rules that have to be exercised during the cross-examination of the child from 14 to 18 years of age, shall be considered in connection with the ones in article 361/a of the CPC. These rules include [1], the care not to harm the child’s mental health, especially when the child is a victim of the criminal offence, according to Article 361/a paragraph 2 of the CPC; [2] the warning for the legal obligation and liability to say the truth. An exception is made out of this rule if the presiding judge deems that the child is not capable of understanding the consequences of oath-taking, Article 361/a paragraph 3 of the CPC. In this case, the court obtains the child’s testimony as the presiding judge offers to the child the possibility to say the truth; and [3] the child is questioned without the presence of the defendant but always in the presence of the defence counsel of the defendant.

       

      1. The cross-examination of the child victim and/or witness of the criminal offence from 14 to 18 years of age is carried out by the presiding judge according to the provision of Article 361/a, the second paragraph of the CPC. During the cross-examination of the child, special attention is paid to avoid the consequences harmful for his/her mental health, particularly when he/she is a victim of the criminal offence. Therefore, when these circumstances are noticed, the child is questioned without the presence of the judge and of the parties according to the provision of Article 361/a first paragraph of the CPC. The following rules are applied in this case: [1] the cross-examination is carried out in the premises where the child is located, which means not in the courtroom, and when possible through the audio-visual means; [2] the cross-examination is carried out through a psychologist, educator or another expert; [3] the parent of the guardian of the child may be present during the cross-examination if their presence a) is not in contradiction with the child’s highest interest, for example in case the criminal offence is not related to the charge of violence posed by the guardian against the child or b) in case it is not in contradiction with the adjudication interest.

       

      1. Despite, the general rule of the first paragraph of article 40 of the CCJC, the child is entitled to require to give the testimony in the presence of the defendant. The court is compelled to inform the child about this right before the cross-examination. In case the child who is informed in a clear and understandable way, [Article 34 of the CCJC] claims such a thing, it is the court which deems and decides if the defendant should be present or not during the cross-examination of the child. In deciding this, the court considers the concrete circumstances of the case analysing the maturity of the child, that is to say his physical and mental development, the re-victimisation and the secondary victimization risk in order to avoid harmful consequences for the development, the growth and the education of the child.
      1. It is the first time in the Albanian legislation that such detailed rules are provided for the cross-examination of the child from 14 to 18 years of age. According to the new legal regulation of the CPC, before the entry into force of its amendments provided for in law no. 35/2017, dated 30.03.2017, and before the entry into force of the CCJC, the child was questioned by the presiding judge assisted by a psychologist or family member of the child in the presence of the parties in the process. If the court deemed that the direct cross-examination of the child, would not harm his psychological condition, it would be carried out by the parties in the process themselves, the prosecutor, the defendant and the defence counsel of the latter.
      1. In the international aspect, several instruments have foreseen and established the standard that children shall be heard during the criminal proceeding especially when they are victims of the criminal offence. On the other hand, the international documents have established the standard that, during the questioning of the child as a witness or victim of the criminal offence, his/her highest interest shall be guaranteed to protect the child’s mental health as well as to avoid his/her re-victimisation or secondary victimisation. Some of the international documents which provide for the above standards are as follows:

       

      1. The General Assembly of the UN, the Convention on the Rights of the Child, November 20, 1989[1]

       

      1. The Council of Europe, the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, Lanzarote, 25.10.2007.[2]

       

      1. The European Parliament and Council, Directive 2012/29/EU “On the minimal standards on the rights, support and protection of the victims of the criminal offence”, October 25, 2012.[3]

       

      [1] Article 12 highlights that “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” https://www.unicef.org/tfyrmacedonia/CRC_albanian_language_version(3).pdf last accessed on August 14, 2017. 

      [2] Article 31 that “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: ...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.” https://rm.coe.int/168046e1e3  last accessed on August 31, 2017 https://rm.coe.int/168046e1e3. 

      [3] Article 19 paragraph 1 stipulates that “Member States shall establish the necessary conditions to enable avoidance of contact between victims and their family members, where necessary, and the offender within premises where criminal proceedings are conducted, unless the criminal proceedings require such contact.” http://eur-lex.europa.eu/LexUriServ/PDF last accessed on August 14, 2017. 

  • Reports, opinions, recommendations and declarations

    1. The Committee of the Ministers of the Council of Europe, Recommendation (2003)20 “Regarding the new ways to treat the child offender of the law and the role of juvenile justice” September 24, 2003.[1]
    2. The Committee of the Ministers of the Council of Europe, Guidance on Friendly Justice for Children, November 17, 2010[2]

     

    [1] “II. A more strategic approach 1. The principal aims of juvenile justice and associated measures for tackling juvenile delinquency should be: i. to prevent offending and re-offending; ii. to (re)socialize and (re)integrate offenders; and iii. to address the needs and interests of victims.” https://www.crin.org/en/library/legal-database/ways-dealing-juvenile last accessed on August 14, 2017. 

    [2] Rule 68-69 provides for “Direct contact, confrontation or interaction between a child victim or witness with alleged perpetrators should, as far as possible, be avoided unless at the request of the child victim. 69. Children should have the opportunity to give evidence in criminal cases without the presence of the alleged perpetrator.” https://rm.coe.int/16804b2cf3 last accessed on 31 August 2017. 

  • The High Level Group of Experts attached to the Ad Hoc Parliamentary Commission on the Reform in the Justice System, Analysis of the Justice System in Albania, June 2015, has noted that “4.2.17 “...Particularly, procedural guarantees, which constitute the standards according to the EU standards, have not been stipulated for the child injured person/victim, the provision of evidence is not applied regularly during the procedural investigation, despite the completion of the specific conditions that are required, the cases when the minor should be questioned in the presence of the parent, psychologist and the methodology for the questioning of the child are not stipulated”. http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf last accessed on August 04, 2017.

  • Article 54 of the Constitution provides for, among other things that:

    1. Children... are entitled to a special protection by the state.

    …

    3. Each child is entitled to be protected from violence, maltreatment, exploitation and use for labour, especially under the minimal age to work for children, which may harm his health, moral or may risk his life or normal development.

    Laws

    Article 3, paragraph 20 of the CCJC

    Article 3, paragraph 24 of the CCJC

    Article 361/a of the CPC

  • No Comment
  • No Comment
  • No Comment

  • Laws

    Article 361 paragraph 1, 2 and 5 of the CPC before the amendments with the law no. 35/2017, dated 30.03.2017:

    1. The questioning of the witnesses is made initially by the prosecutor or the defence lawyer or representative who has requested the questioning. Then, the questioning continues by the parties, in order.
    2. The one who has requested the questioning may ask questions even after the other parties have terminated theirs.

    …..

    1. The questioning of the child witnesses is carried out by the chairman, based on the requests and the contradictions of the parties. The chairman may be assisted by a family member of the child or a specialist in the field of educating children. When it is deemed that the direct questioning of the child does not damage his psychological condition, the chairman orders the questioning to continue according to the provisions of paragraphs 1 and 2. The order may be revoked during the questioning.
    2. The order may be revoked during the cross-examination.
Manjola Xhaxho, Elina Kombi, Erion Cenko
Arta Mandro, Koraljka Bumči