Table of Content

• Comments
  • Purpose
    1. The purpose of article 41 of the CCJC is to determine special additional rules for the cross-examination of the child victim and/or witness of sexual violence and sexual abuse, to better protect such children. Acts defined as criminal offences are sexual harassment, sexual violence, committing sexual intercourse, committing shameful offences, sexual exploitation, prostitution, traficing, provided for in articles 100, 101, 107/a, 108, 108/a, 114, 128/b of the Criminal Code (CC). If the sexual violence and the sexual exploitation occurs within the family, the child is entitled to further protection according to law no. 9669, dated 18.12.2006 “On the measures against violence in family relations” and article 130/a of the CC. Its first paragraph considers as domestic violence battering, as well as any other violent act, against the person who is the spouse, former spouse or former-cohabitant, close relative or close relative in-law with the author of the criminal offence, causing violence to his physical, psycho-social and economic integrity. This offence is sentenced with imprisonment up to two years.

     

    2. Article 41 intends to ensure on one hand the appropriate balance between the administration of the evidence in the criminal process which serves to render justice in especially difficult cases, such as sexual violence and sexual exploitation, and on the other hand between the psychological and mental protection of the child, the avoidance of the risk of re-victimization, according to Article 3 paragraph 20 of the CCJC and the second victimization according to the meaning provided for in Article 3 paragraph 24 of the CCJC. This purpose is realized through guaranteeing on one hand the best interest of the child and on the other to respect the principle of due legal process during the collection of evidence, the respect of the rights of the defendant. This Article regulates the method of getting and evaluating of the testimony of the victim and/or witness.

     

    3. The purpose of article 41 of the CCJC is to interlink at the same time the procedural rules on the testimony provided for in Article 58/b of the Criminal Procedure Code (CrPC) with the ones provided for by Article 41 and 40 of the CCJC in the case of specific criminal offences, namely sexual exploitation and sexual violence, and where the child is interrogated as victim and/or witness.This article intends to make clear the process of getting the testimony in such cases through audio and video equipment as well as through the use of the necessary communication technologies and the obligation to hold the entire process in camera. Furthermore, the article regulates the cross-examination of the child in the case of domestic violence where the abuser is his parent or relative.
  • Scope
    4. Article 41 of the CCJC is structured in five paragraphs which treat the procedural rules for the cross-examination of a child in two situations: 

    1. when he/she is a victim and/or witness of sexual exploitation and violence;
    2. when he/she is a victim and/or witness of domestic violence if a parent or relative abuses with the child sexually.

     

    5. The first paragraph of article 41 refers to the general rules which apply during the cross-examination of the child who is between 14 and 18 years of age according to the regulations of Article 40 of the CCJC. Article 40 of the CCJC, refers to the rules for the cross-examination of a child witness of criminal offences provided for in article 361/a of the CPC, applicable in their entirety during the cross-examination in the criminal justice proceedings, of the child victim and/or witness of sexual exploitation and violence.

     

    6. Paragraphs two to five stipulate special rules which should be followed during the cross-examination of these children, such as: [1] the testimony may be heard through audio or video methods; [2] the testimony may be heard in the courtroom without the presence of the child through communication technologies; [3] the adjudication of the criminal offences of sexual exploitation and/or sexual abuse committed against the child is done in camera; [4] No child victim of domestic violence is interrogated in the presence of the abusive parent or relative, during the hearing on the issuing of the immediate protection order of the protection order which is carried out in compliance with law no. 9669, dated 18.12.2006 “On measures against violence in family relations”, amended.
  • Comments
    7. According to Article 41 of the CCJC, the cross-examination of the child victim and/or witness of sexual exploitation and sexual violence requires special attention to the child’s protection, taking into consideration his/her best interests as guaranteed in several international instruments. Such are the provisions of article 3 of the Convention on the Rights of the Child adopted by the General Assembly of the Organisation of the United Nations, on November 20, 1989, the interpretation of which is explained by the Committee on the Rights of the Child in its General Committee no. 14 (2003), dated May 19, 2003, as well as in article 24 paragraph 2 of the Charter of the Fundamental Human Rights of the European Union (EU)[1]. What is concretely mentioned concerning the child victim and/or witness of the sexual exploitation and sexual violence is the psychological trauma they experience throughout their life. Consequently, the cross-examination of and getting testimony from these children should avoid re-victimisation as provided for in article 3 paragraph 20 of the CCJC and of second victimisation provided for in article 3, paragraph 24 of the CCJC, to avoid harmful consequences for the development, the growth and education of the child. Consequently, the proceeding body should use protection measures for such child victims of these criminal offences considering the age, the personality and other circumstances, in the concrete case and analysing the maturity of the child, his physical and mental development.

     

    8. The rules that are applied during the cross-examination of the child in this case are provided in several articles related, namely article 40 of the CCJC as well as article 361/a of the CPC referred by article 40 of the CCJC. These rules are listed as follows:

     

    1. The adjudication process and subsequently the testimony are carried out only in camera. This means that the criminal process is attended only by persons involved in the procedure such as: the judge, the prosecutor, the defendant, the defence counsel of the defendant, the psychologist, the legal and procedural representative of the child, the defence counsel of the child. The hearing is not open for the public according to Article 339 paragraphs 1 and 2 of the CPC concerning public hearing. This regulation is based on the international instruments such as the Convention on the Protection of the Child from the Sexual Exploitation and Sexual Abuse of the Council of Europe, dated 25.10.2007 (Convention of Lanzarote, Art. 35/2a), or the Directive of the European Parliament and of the Council 2012/29/EU “On the minimum standards on the rights, the support and the protection of the victims of criminal offence” and the Directive of the European Parliament and of the Council 2011/92/EU “On the fight against sexual abuse and sexual exploitation of children and pornography with children”, Article 20/3c.
    2. The child who is a victim of sexual exploitation and of sexual violence is interrogated without delay by specialized experts for this purpose including an officer of the judicial police or a prosecutor of the same gender. The interrogation is registered by the audio and video registration tools and can be used as evidence in the criminal proceeding at court and reviewed with other evidence according to Article 361/a paragraph 4 of the CPC. This is the regulation of  paragraph 1 article 41 which refers to article 40 of the CCJC, the latter referring to Article 361/a of the CPC.
    3. Based on article 361/a paragraph 1 of the CPC together with article 41, paragraph 1 and article 40 paragraph 1 of the CCJC, the questioning of a child under 14 is conducted in appropriate premises and without the presence of the judge or of the parties. The questioning is realized through a psychologist, educator or another expert. The parents or the legal guardian are present if they are not excluded because of conflicting interests with the best interest of the child and the procedure. In exceptional cases, upon the requests of the parties or ex officio, the court may decide that the child shall be questioned in the presence of the expert. In this case, the court states that this mode of cross examination is a) in the best interest of the child considering the age, the personality and the other circumstances and b) the interest of the procedure itself., After hearing the parties and after considering the circumstances of the concrete case regarding the consequences for the child and the administration of the judicial process itself, the court decides if the testimony can be heard in the courtroom, without the presence of the child, through technological means of communication or if it can be shown during the hearing through audio visual means. The testimony is given outside the premises of the courtroom, in an appropriate place for the child. Article 361/a paragraph 1 provides for the possibility of repeating the cross examination, but this can happen only in special cases according to the provision of this article and must be performed in the same way. It should be noted that the international standards stipulate that the re-questioning of the child victim and/or witness of  sexual exploitation and sexual violence should be avoided, (article 35 paragraph 2 letter “e” of the Convention of Lanzarote, or article 20 paragraph 3 letter “e” of the Directive 2011/92/EU of the European Parliament and Council), to exclude that the criminal process would damage the mental and psychological development of the child and to avoid the re-victimization or second victimization of the child.
    4. Pursuant to article 361/a paragraph 2 of the CPC together with article 41 paragraph 1 and 3 and article 40 paragraph 1 of the CCJC, the cross examination of a child of 14 to 18 years of age may be conducted in the hearing by the president of the panel without the presence of the defendant but in the presence of the defence counsel of the defendant. The court is compelled to inform the child that he/she is entitled to request to be cross-examined in the presence of the defendant. In case the child requires it, the court considers if the defendant should or should not be presentThe court evaluates the concrete circumstances of the case analysing the maturity of the child, his/her physical and mental development, the re-victimisation risk according to Article 3 paragraph 20 of the CCJC and the second victimization according to Article 3 paragraph 24 of the CCJC. When it is concluded that the cross-examination of the child of this age in the trial would damage his/her best interest or the trial itself, cross-examination shall be carried out according to article 361/a paragraph 1 of the CPC and article 41 paragraph 2 and 3 of the CCJC. The child is entitled to ask to have his testimony heard in the hearing through audiovisual means or to be heard without being present through the use of communication technologies. On the other hand, according to the case, after hearing the parties and after taking into consideration the circumstances of the concrete case regarding the consequences on the child and on the administration of the judicial process itself, the court decides if the testimony can be heard in the courtroom, without the presence of the child, through the technological means of communication or if it can be shown during the hearing through the audio-visual means. It should be taken into consideration the fact that the international standards recommend the registration with audiovisual tools of the child’s testimony, which is then showed in the hearing without his/her presence, for example article 35 paragraph 2 and article 36 paragraph 2 letter “b” of the Convention of Lanzarote or article 20 paragraph 4 and paragraph 5 letter “b” of the Directive 2011/92/EU of the European Parliament and Council.

     

    9. The legal provisions of article 41 of the CCJC on cross examination of the child regarding the evaluation of the testimony as evidence should be enforced by the courts in compliance with the practice of the European Court of Human Rights (ECHR). In the case W.S. against Poland, 2007, paragraph 61 of the decision, the European Court of Human Rights suggest that there are several ways to test the reliability of the child-victim and this shall be done in the most appropriate way and not through direct questions. The court can propose that a) the child may be cross examined through the psychologist who is given the questions prepared preliminarily by the defence councils of the parties in the process, or another alternative is b) to cross-examine the child in a studio which makes the presence of the defence counsel possible through a connection with a video or a mirror. In this decision it has been highlighted: “.ECHR observes that it has not been shown or argued that the authorities envisaged or made attempts, either at the investigation stage, or later, before the court, to test the reliability of the victim in a less invasive manner than direct questioning. This could have been done, for example, by more sophisticated methods, such as having the child interviewed in the presence of a psychologist and, possibly, also her mother, with questions put in writing by the defence, or in a studio enabling the applicant or his lawyer to be present indirectly at such an interview, via a video-link or one-way mirror (Accardi and Others v. Italy (dec.), cited above; S.N. v. Sweden cited above, § 13). Had the authorities in the present case taken measures which would have allowed the court to have at its disposal, for instance, a recording of the interview which the psychologists had with the victim, the applicant's defence rights would have been better safeguarded”.

     

    [1] According to Article 24, paragraph 2 of the Charter of Fundamental Rights of the EU, we have: 'In all actions undertaken with regard to children, both by public authorities and private institutions, the best interest of the child shall have primary consideration'.

  • Historic context
    10. This is the first time that the Albanian legislation provides for comprehensive rules for the cross examination of the child victim and/or witness of sexual exploitation or sexual violence. According to the provision 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 cross-examination of the child was carried out according to the procedure provided for in article 361 of the CPC, despite his age. The child would be 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 by themselves, the prosecutor and the defendant and the defence counsel of the latter. According to case law, in cases of adjudication of criminal offences of sexual relations with children, cross examination is carried out guaranteeing the questioning of the children through a psychologist in premises separated from the courtroom through a video conference guaranteeing that the contact of the defendant with the child victim of the criminal offence is avoided, as it happened in the case Prosecution Office against David Brown, convicted for the criminal offence “committing sexual intercourse with a child”, 2008.
  • International acts
    11. In the international aspect, several international instruments have established standards for children to be heard during criminal proceedings especially when they are victims of the criminal offence. On the other hand, the international documents have established that during the cross examination of the child as a witness or victim of the criminal offence of sexual exploitation or sexual violence, his/her best interest shall be guaranteed to protect their mental health. Some of the international documents which provide for the above standards are the following:

     

    12. The Convention on the Rights of the Child, Article 3/1 highlights that “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 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

     

    13. The Council of Europe, the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, Lanzarote, 25.10.2007, provides in article 30 that “1. Each Party shall take the necessary legislative or other measuresto ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child. 2. Each Party shall adopt a protective approach towards victims, ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the criminal justice response is followed by assistance, where appropriate...”; it further provides in 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.”; .Article 35 stipulates that”1. Each Party shall take the necessary legislative or other measures to ensure that:a. interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities; b. interviews with the child take place, where necessary, in premises designed or adapted for this purpose; c. interviews with the child are carried out by professionals trained for this purpose; d. the same persons, if possible and where appropriate, conduct all interviews with the child; e. the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings;f. the child may be accompanied by his or her legal representative or, where appropriate, an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person. 2. Each Party shall take the necessary legislative or other measures to ensure that all interviews with the victim or, where appropriate, those with a child witness, may be videotaped and that these videotaped interviews may be accepted as evidence duringthe court proceedings, according to the rules provided by its internal law.’Article 36, paragraph 2 mentions “Every party takes the necessary legislative measures or other measures to ensure, in compliance with the rules stipulated in the internal legislation, that: a the judge shall order that the hearing shall be carried out without the presence of the public; b the victim may be heard in the courtroom without being present through the use of the necessary communication technologies.”

    https://rm.coe.int/168046e1e3  last accessed on August 31, 2017

     

    14. The European Parliament, the Council and the European Commission of the European Union, the Charter of Fundamental Human Rights, 2000 article 24 paragraph 2 provides for that “In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.”

    http://www.europarl.europa.eu/charter/pdf/text_en.pdf last accessed on August 31, 2017

     

    15. The European Parliament and the Council, Directive 2011/92/EU “On the war against sexual abuse and sexual exploitation of the children and pornography with children”, article 20 paragraph 3 letter “a” and “e” provides for that “interviews with the child victim take place without unjustified delay after the facts have been reported to the competent authorities; the number of interviews is as limited as possible and interviews are carried out only where strictly necessary for the purpose of criminal investigations and proceedings” paragraph 4 stipulates “Member States shall take the necessary measures to ensure that in criminal investigations of any of the offences referred to in Articles 3 to 7 all interviews with the child victim or, where appropriate, with a child witness, may be audio-visually recorded and that such audio-visually recorded interviews may be used as evidence in criminal court proceedings, in accordance with the rules under their national law”; paragraph 5 stipulates “Member States shall take the necessary measures to ensure that in criminal court proceedings relating to any of the offences referred to in Articles 3 to 7, that it may be ordered that:(a) the hearing take place without the presence of the public; (b) the child victim be heard in the courtroom without being present, in particular through the use of appropriate communication technologies”; highlights in paragraph 5“Member States shall take the necessary measures, where in the interest of child victims and taking into account other overriding interests, to protect the privacy, identity and image of child victims, and to prevent the public dissemination of any information that could lead to their identification”

    http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32011L0093 last accessed on August 31, 2017

     

    16. 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, article 10, paragraph 1, stipulates that “Where a child victim is to be heard, due account shall be taken of the child's age and maturity”. 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.”; and article 23 paragraph 2 letter d stipulates that “2. The following measures shall be available during criminal investigations to victims with specific protection needs identified in accordance with Article 22(1): (d) measures allowing a hearing to take place without the presence of the public.”

    http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:315:0057:0073:EN:PDF last accessed on August 14, 2017

• International standards/International references/Best examples
  17. The judgement of ECHR, W.S. vs Poland, dated 17.06.2007 paragraph 61 underlines that: “In the present case the essence of the applicant's complaint is that the victim of the offence was never questioned during the proceedings and that, as a result, he was convicted without ever having been able to question her. It is not for the Court to replace the domestic authorities in deciding on the manner in which evidence in criminal proceedings should be taken and presented to the courts. The Court is also fully aware that in the present case there were particular difficulties in establishing the facts of the case, if only because of the victim's very young age. It notes the efforts made by the prosecuting authorities to assess whether questioning her would have been detrimental to her development. However, the Court observes that it has not been shown or argued that the authorities envisaged or made attempts, either at the investigation stage, or later, before the court, to test the reliability of the victim in a less invasive manner than direct questioning. This could have been done, for example, by more sophisticated methods, such as having the child interviewed in the presence of a psychologist and, possibly, also her mother, with questions put in writing by the defence, or in a studio enabling the applicant or his lawyer to be present indirectly at such an interview, via a videolink or oneway mirror (Accardi and Others v. Italy (dec.), cited above; S.N. v. Sweden cited above, § 13). Had the authorities in the present case taken measures which would have allowed the court to have at its disposal, for instance, a recording of the interview which the psychologists had with the victim, the applicant's defence rights would have been better safeguarded.”

  http://hudoc.echr.coe.int/eng?i=001-81140 last accessed on August 30, 2017

• Legislative material
  18. 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 requires, 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 04 August 2017
• Related articles

  Article 3, paragraph 8, 20 and 24 of the CCJC provides for that:

  “8. The relative is the person who has close family, marriage relations with the child.

  20.Revictimisation means causing a damage to the child, who is the victim of the criminal offence, as a consequence of a new criminal offence related to the first one.”

  24. “Secondary/repeated victimization” is the condition when a damage may be caused to a child, the victim of the criminal offence, as a result of the participation in the process of criminal justice.” 

  Article 40 of the CCJC provides for that:

  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. 

  Article 361/a provides for that: 

  1. A child 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 child 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 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. 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.”. 

  Article 339 of CrPC in paragraphs 1 and 2 it has been provided for: 

  1. The judicial hearing is public, otherwise it shall be null and void.
  2. Minors aged under sixteen years of age and those who are drank, intoxicated or mentally disordered shall not be allowed in the hearing;
• Sublegal acts
  No Comment
• Decisions
  No Comment
• Literature
  No Comment
• Archive

  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 children witnesses may be conducted by the presiding judge, on the requests and the contradictions of the parties. The presiding judge may be assisted by a family member of the child or by a specialist in the field of the education of children. When it is deemed that the direct questioning of the child damages his psychological condition, the presiding judge orders that the questioning shall continue according to the provisions of paragraphs 1 and 2. The order may be revoked during the questioning.