Table of Content

• Comments
  • Purpose
    1. As a part of the articles of Chapter V of the CCJC, the purpose of Article 42 is to highlight the guarantees and the rights of the child under 14 years of age when he gives his testimony in the capacity of the victim or of the witness of the criminal offence. This article provides for the appropriate balance between getting the evidence in the criminal process, which serves in rendering justice, on one hand, and guaranteeing the best interest of the child under 14 years of age during the procedure of his cross-examination, on the other.

     

    2. Also, this article targets and guarantees the right of the child victim to be heard, as a right that is recognized in several international instruments, as stipulated for example in Article 12 of the Convention of the UNO for the Right of the Child; Article 10, paragraph 1 of the Directive 2012/29/EU “On the minimal standards for the rights, the support and the protection of the victims of the criminal offence”, approved in the European Parliament and Council^[1], etc. This purpose should be realized by respecting the rights of the defendant for a correct legal process regarding the way how the testimony of the child victim and/or witness is taken and evaluated by the court.

     

    3. The purpose of article 42 of the CCJC is realized by providing for special procedural rules on getting the testimony of the child under 14 years of age and by interrelating them at the same time with the rules provided for by Article 361/a of the Criminal Procedure Code (CPC) and Article 58/a of CPC. This article respects from one side the right of the child to be heard in the cases of criminal justice related to him and on the other hand, it ensures the compliance with the best interest of the child taking into consideration the young age of the child. In this way, this article guarantees a special protection for the child from damages that may impact, inter alia, their psychological and mental wellbeing from the presence of the defendant in this process.

     

    [1] Article 10, Right to be heard: 1. Member States shall ensure that victims may be heard during criminal proceedings and may provide evidence. Where a child victim is to be heard, due account shall be taken of the child's age and maturity.

    Accessed at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32012L0029

  • Scope
    4. Article 42 of the CCJC is structured in five paragraphs. The first paragraph provides for the reference in Article 361/a of the CPC as well as in the other standards and guarantees provided for in the CCJC for the child victim and/or witness of the criminal offence during the process of his/her cross-examination. According to this legal reference, article 361/a of the CPC as well as the other rights or guarantees provided for in the CCJC are enforced and complete the procedure of cross-examining the child under 14 years of age, provided for in article 42 of the CCJC. Meanwhile, 4 other paragraphs provide for the special procedural rules that have to be followed during the interrogation of the child under 14 years of age.
  • Comments
    5. This article stipulates additional rules creating a special protection for this category of child victims and witnesses of the criminal offence facilitating in this way the process of their cross-examination. According to this article the proceeding body is the court, which shall cross examine the child under 14 years of age considering the psychological, physical and mental development of this very young age. More concretely the court should not damage his psychological, mental development and should avoid the risk of revictimization according to the meaning provided for in 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. Based on this prospective, the cross-examination of the child, if conducted, is done by protecting his/her best interest in several international instruments, such as in article 3 of the Convention for the Rights of the child adopted by the General Assembly of the UNO, on November 20, 1989, which is detailed by the Committee on the Rights of the Child in the General Committee no. 14 (2003), dated May 19, 2003 as well as article 24 paragraph 2 of the Charter of Fundamental Rights of the European Union (EU)[1]. Also, when the court takes the testimony of the child and evaluates it with the other evidence in the criminal process, it should guarantee the rights of the defendant for a correct legal process as provided for in Article 6 of the European Convention of Human Rights and Article 31, letter “d” of the Constitution and Article 361/a, paragraph 4 of CPC.

     

    6. As Article 42 of the CCJC is a referring article, the rules implemented during the cross-examination of the child in this case have been provided for in article 41 of the CCJC as well as in Article 361/a of the CPC, it refers to. These rules have been listed as follows:

     

    1. The cross-examination of the child shall be conducted only with the consent and in the presence of his legal/procedural representative, his defence counsel and his psychologist. But the legislation and more concretely, paragraph 3 of Article 41 of the CCJC and Article 361/a, paragraph 1 of the CPC provides for the exceptional cases when the participation of the legal representative is prevented during the cross examination of the child, which concretely happens if the participation of the legal representative is in contradiction with: a) the best interest of the child and if he is suspected to have committed illegal actions and/or omissions, such as in the case when the legal representative is suspected to have exercised violence or to have mistreated the child or b) the interest of the adjudication. These provisions are in compliance with the international standards included in several international instruments related to the cross-examination of the child by specialized persons, such as the psychologist, in the presence of the defence counsel and the legal representative and when due to the conflict of interest the child has with the latter, in the presence of the procedural representative assigned to the child in the concrete case. These standards are provided for in Articles 23 and 24 of the Directive 2012/29/EU “On the minimal standards for the rights, the support and the protection of the victims of the criminal offence”, adopted in the European Parliament and Council.[2]
    2. According to paragraph 5, Article 41, the proceeding body shall consult preliminarily with the psychologist the content of the questions that shall be addressed to the child. Also, the legal/procedural representative, taking into consideration the situation when the legal representative has not been prevented from participating in the cross-examination of the child, according to Article 41 paragraph 3, he is entitled to express his opinion regarding the questions that will be addressed to the child. During the cross-examination of the child under 14 years of age, the following shall be taken into consideration: the young age of the child and consequently according to paragraph 5 of Article 41 it shall be guaranteed that [a] the cross-examination shall be conducted appropriately, [b] the processes of giving the testimony should be facilitated; [c] the fear or the intimidation from the process should be eliminated. When the child is subject to the questions during the process, it is probable that he/she may be anxious and may feel confused. Therefore, the questions shall be made appropriately in order for the proceeding body to minimize the concerns and to facilitate some of the difficulties the child victim/witness of the criminal offence confronts with during the criminal process, which are caused because of the young age. For the realization of this thing, the court discuss with the psychologist the content of the questions and the approach of cross-examination. More concretely, during the cross-examination of the child the following points shall be taken into consideration: a) the questions shall be asked according to an order and one sentence shall not contain more than one question; b) the sentences shall be short, simple and appropriate and understandable in compliance with the age and the development of the child; c) firstly, open questions shall be used to give the opportunity to the child to recall as many details and information as possible about the case and then specific questions shall be asked if not enough information is received during the open questions, etc, and ç) the following types of questions shall be avoided: the intensive questions, the suggestive questions, the questions where “why” is used often, the questions that project and reflect the opinions of the child, the ones that express doubts about the statements of the child or the generalizing questions which may lead to useless answers.
    3. According to Article 361/a of the CPC, the cross-examination of the child witness is carried out without the presence of the judge and of the parties in the premises where the child is, and when possible through the audio-visual means. The cross – examination is conducted through a psychologist, an educator or another expert. There is an exception from this rule, provided for in Article 361/a, paragraph 1, which provides for the that parties may claim, or the court may decide ex officio that the child shall be cross-examined by the judge in the presence of the expert. The court takes a decision by evaluating the circumstances of the concrete case in order for this cross-examination not to be in contradiction with the interests of the child and of the adjudication as this evidence is taken. These provisions are in compliance with the international standards related to the cross-examination of the child by specialized persons and in the premises where the child is, without being present in the courtroom, to make the process of giving the testimony easier and to protect the mental and the psychological development of the child from the confrontation with the defendant in the criminal process. Therefore, the questioning of the child by the panel themselves shall be avoided and the questioning shall not be held in the courtroom but in premises appropriate for the child, mainly where he/she is. Procedural rules regarding the questioning of the minor victim are also provided for in Article 58 / a of the CPC which in its paragrapf 4 provides for the right to be questioned without delay and by persons specialized for this purpose. Whenever possible and appropriate, the conversation is recorded with audio-visual equipment, as provided for in this CPC and CCJC. This recording may be used as evidence in the criminal proceedings and assessed together with other evidence, according to the criteria provided for in paragraph 4 of Article 361 / a of the CCP. These standards have been provided for in articles 23 and 24 of Directive 2012/29/EU “On the minimal standards for the rights, the support and the protection of the victims of the criminal offence” adopted by the European Parliament and Council.[3] 
    4. According to paragraph 4 of article 41, during the cross-examination of the child under 14 years of age, [a] the rule for the warning regarding the legal obligation and responsibility to say the truth is not exercised; and [b] the child is told that he does not have any legal responsibility for the refusal of giving the testimony or for giving a false testimony, as he does not have the appropriate age according to the meaning of Article 7 of the CCJC and Article 12 of the CC. On the other hand, the court explains to the child clearly and in an understandable way, through examples, the importance to say the truth and the consequences caused by failing to say the truth about third persons.
    5. According to paragraph 1 of Article 361/a of the CPC, the cross examination can be carried out through audio and video and can be shown in the hearing without the presence of the child. This provision is in compliance with the international standards stipulated in several international instruments related to the cross-examination of the child through audio-visual means and their registration and then their presentation in the hearing by avoiding the presence of the child in the courtroom and the confrontation with the defendant to make the process of giving the testimony easier and to protect the mental and psychological development of the child from the confrontation in the criminal process. These standards are provided for in Articles 23 and 24 of the Directive 2012/29/EU “On the minimal standards for the rights, the support and the protection of the victims of the criminal offence” adopted in the European Parliament and Council. 

     

    7. The legal stipulations of article 42 of the CCJC regarding the cross-examination of the of the child on the evaluation of the testimony as evidence shall be enforced by the courts in compliance with the practice of the European Court of Human Rights (ECtHR), which according to the suggestion in the case W.S. against Poland, 2007, paragraph 61 of the decision, rules that there are several ways to test the credibility of the child victim, and this shall be done in the most appropriate way and not through the direct questions. The court has proposed that a) the child may be questioned through the psychologist and the questions are given to the child in advance by the defence counsels of the parties in the process, or b) another alternative is the cross-examination of the child in a study which makes it possible for the lawyer to be present through a video connection or a mirror, where the latter is not understood by the child.

     

    [1] According to article 24 paragraph 2 of the Charter of Fundamental Rights of the EU, it results 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.”

    [2] See their content in the comment of this article at the section E, On International Legislation. 

    [3] See their content in the comment of this article at the section E, On International Legislation.

  • Historic context
    8. This is the first time that detailed rules are provided for in the Albanian legislation regarding the cross-examination of the child victim and/or witness under 14 years of age. According to the legal provision of the CPC, before its amendments (provided for in law no. 35/2017, dated 30.03.2017) entered into force and before the CCJC entered into force, the cross-examination of the child was conducted pursuant to the stipulations of article 361 of the CPC, despite the age of the child. More concretely, the child was questioned by the president of the panel in the presence of the psychologist or a family member of the child and in the presence of the parties in the process, as there were no obstacles in this regard. If the court deemed that questioning the child directly would not damage his psychological condition, his cross-examination would be conducted by the parties in the process: the prosecutor, the defendant and his/her defence counsel.
  • International acts
    9. From the international perspective, several instruments have provided for and have established the standard that the child shall be heard during the criminal process, particularly when the child is the victim of the criminal offence. However, on the other hand, the international documents have established the standard that during the cross-examination of the child as a witness or victim of the criminal offence, the best interest of the child shall be guaranteed to protect the mental health of the child and to avoid his/her revictimization or second victimisation. Some of the international documents that provide for the above standards are as follows:

     

    10. The General Assembly of the UNO, the Convention of the Rights of the Child, November 20, 1989, article 3/1 underlines 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 underlines 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 31, 2017.

     

    11. European Parliament, Council and Commission of Europe of the European Union, Charter of the Fundamental rights stipulate that: 2. 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 

     

    12. Committee of the Ministers of the Council of Europe, Recommendation (2003) 20 “On the new ways to treat the children who have violated the law and the role of juvenile justice” September 24, 2003, stipulated that “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/council-europe-recommendation-rec200320-concerning-new-ways-dealing-juvenile last accessed on August 30, 2017 

     

    13. The European Parliament and Council, Directive 2012/29/EU “On the minimal standards for the rights, the support and the protection of the victims of the criminal offence”, October 25, 2012, Article 10 paragraph 1, Article 19, paragraph 1, Article 23, paragraph 2 and 3, Article 24.

    http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:315:0057:0073:EN:PDF

    last accessed on August 31, 2017.

• International standards/International references/Best examples

  Decision of the ECtHR, W.S. against Poland, on 17.06.2007 paragraph 61 reads 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 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.” 

  http://hudoc.echr.coe.int/eng?i=001-81140 last accessed on August 31, 2017 

  Case P.S. against Germany (application Nr: 33900/96) paragraphs 21 and ongoing:

  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 defense. 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).

  25. In the present case, the applicant was convicted of having sexually abused S., an eight-year-old girl.

  26. The Court notes that at no stage of the proceedings has been questioned by a judge, nor did the applicant have any opportunity of observing the behavior of this witness under direct questioning, and thus from testing her reliability (see the Kostovski v. the Netherlands judgment of 20 November 1989, Series A no. 166, p. 20, § 42 in fine; and the Windisch judgment cited above, p. 11, § 29).

  27. At first instance, the District Court, in its decision of 10 January 1994, relied on the statements made by S.’s mother, who had given evidence concerning her daughter’s account of the events and her behaviour on 29 April 1993 as well as her character in general, and of the police officer who had questioned the girl shortly after the offence in April 1993.The District Court decided not to hear S. in order to protect her personal development as, according to her mother, she had meanwhile repressed her recollection of the event and would seriously suffer if reminded thereof.

  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. 

  https://hudoc.echr.coe.int/eng#{"fulltext":["(\"P.S.\")"]:["001-59996"]}, vizituar më 1 shkurt 2018.

• Legislative material

  The Group of the High Level Experts attached to the Ad-Hoc Commission on the Reform in the Justice System, the Analysis of the Justice System in Albania, June 2015, noted that “ 4.2.17 “...The following elements have not been provided for especially for the child injured person/victim: the procedural guarantees, which constitute standards according to the standards of the EU, the security of evidence is not applied regularly during the preliminary investigation despite the completion of the requires specific conditions, the cases when the child should be questioned in the presence of the parent, psychologist and the methodology for the cross-examination of the child have been determined.”  

  http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, last accessed on August 31, 2017

• Related articles

  Article 31 letter d of the Constitution provides for that: 

  In a criminal proceeding, everyone has the right: 

  1. d) to question witnesses who are present and to seek the appearance of witnesses, experts and other persons who can clarify the facts. 

  Article 3 of the CCJC provides for that:

  …

  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. “Procedural representative” is the person as per the meaning defined in the law in force on the rights and protection of the child who represents the child procedurally, according to the provisions of this Code.”

  Article 361/a of CPC provides for that:

  1. A minor witness under the age of 14 is questioned without the presence of the judge and the parties, at the premises where the minor is located, when possible, by means of audio-visual tools. Questioning is conducted through a psychologist, an educator or another expert and, if this is not contrary to the interests of the trial or interests of the child, the parents or the legal guardian may be present during the questioning. The parties may request and the court may decide ex officio that the minor be questioned by the judge in the presence of an expert. The minor may be questioned again only in specific cases and at the same way.
  2. The questioning of a minor witness aged 14 to 18 years is conducted by the panel presiding judge. During the questioning, special care is given to avoid harmful consequences on his mental health, especially if the minor is a victim of the criminal offence. In compliance with the circumstances, the questioning may be conducted as foreseen in paragraph 1 of this Article.
  3. The panel presiding judge, when questioning a minor witness up to 14 years of age, shall not observe the rule on the warning on the obligation and legal responsibility of the minor to tell the truth. This exemption shall apply also to other minor witnesses, if the presiding judge deems that he is not capable of understanding the consequences of oath-taking. In such cases, the panel presiding judge shall give to the minor the possibility to tell the truth and the court shall proceed with the hearing of the minor’s testimony.
  4. When the minor is heard during investigations and his statements are recorded, pursuant to paragraph 4 of Article 58/a of this Code, they are used as evidence in trial, if the defendant and the defence lawyer give their consent. The statements of the minor may be used as evidence even if the defence lawyer has been allowed to question the minor through experts and the expert deems that the repetition of questioning may harm the psychological conditions of the minor.".

  Article 12 of the CC provides for that:

  “A person shall be held criminally liable if, at the time of committing the crime, he has reached the age of fourteen.

  A person committing a criminal contravention shall be held liable if he has reached the age of sixteen.”

• Sublegal acts
  No Comment
• Decisions
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• Literature
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• Archive

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