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

Article 43: Measures to protect the privacy and well-being of the child victim and witness

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1. The court shall, ex officio, at the request of a child victim or witness, child’s legal/procedural representative and/or child’s defence counsel, considering the best interest of the child, order, where appropriate, the taking of one or several adequate and appropriate measures to protect the privacy and physical and mental well-being of the child and to prevent suffering and secondary victimization including:

a. expunging from the public record any names, addresses, educational institutions, and/or workplaces, professions or any other information that could be used to identify the child;

b. prohibiting the defence counsel of the defendant and the child victim/witness from disclosing the identity of the child or any materials or information that could lead to identifying the child;

c. ordering the non-disclosure of any records that identify the child to the extent deemed necessary by the court;

ç. assigning a number to the child for the purpose of preparing the defence of the accused, date of birth and the full name of the child, where appropriate, shall be disclosed within a reasonable period;

d. taking measures not to disclose the identity of the child including: alteration of the image/appearance/presentation or voice; testifying behind an opaque shield; cross-examination in another place and simultaneous transmission to the courtroom by means of closed-circuit television; videotaping (audio and video recording) cross-examination of the child witness prior to the hearing, in which case the defence counsel of the accused attends examination and is given the opportunity to examine the child witness or victim; communication through a qualified and suitable mediator, including the translator/interpreter for children with hearing, sight, speech or other disabilities, but not limited only to these;

dh. holding in-camera hearings;

e. giving orders to temporarily remove the accused from the courtroom if the child refuses to give testimony in the presence of the accused or if circumstances show that the child may be inhibited from speaking the truth in that person’s presence. In such cases, the defence counsel of the child shall remain in the courtroom and question the child, and the accused’s right of confrontation shall thus be guaranteed;

ë. allowing recesses during the child’s testimony;

f. taking any other measures that the court may deem necessary, including, where applicable, anonymity, taking into account the best interests of the child and the rights of the accused.

Table of Content

      1. Article 43 stipulates its purpose from the very beginning, in its title. This article is dedicated to the protection of the privacy of the child who is involved in the justice process, particularly when he has the status of the victim or of the witness. This purpose is related to a list of measures, which may and should be considered by the court for the protection of the privacy of the child who is the witness of a criminal offence and/or of the child who is the victim of a criminal offence.

       

      1. In all the points that compose its content, the article treats in a parallel way the concrete list of the measures which can be taken for the protection of the privacy of the child and the procedural steps that should be followed one after the other, starting from the submission of the request by the subject/s provided for in this article, including their recording mainly by the court up to rendering the order for taking the necessary measures in the interest of the child.

       

      1. Article 43 gives an added importance to the decision-making process of the protective measures, which is shown even through the fact that the court has the right and at the same time the obligation to start ex officio the procedure of taking the measures which protect the private life of child victims and witnesses of the criminal offences.

       

      1. Article 43 underlines the main principles referred to for taking the measures which protect the privacy of the child, starting with the principle of the best interest of the child, and continuing with the purpose to reach a physical and mental well-being of the child, and to prevent the suffering and the second victimization.

       

      1. The list of the measures rendered in article 43, through its letters, starts with the measures of a technical, legal and physical character, which protect the non-identification of the child as a result of the personal data that have been collected for him during the process of criminal justice for children and continues with the measures of a procedural character related with the way how the criminal justice process functions. These measures are based on principles such as: the in camera adjudication or rules of a principle character which are related with the way of testifying by the child victim or witness, such as removing the accused temporarily from the courtroom, if the child refuses to testify in the presence of the accused person, allowing recesses during the child’s testimony, the anonymity and other important measures, taking into consideration the best interest of the child. Letter e) of article 43 should be red and applied in connection with article 361, letter a) of CPP, according to which each minor under the age of 18 years old should not be questioned in the chamber of the court.
      1. The legal language that has been used, in this Article sometimes is declarative, providing the elements of a procedural character related with the way how the requirements or the needs for taking the measure for the protection of privacy are stipulated, and sometimes it is imperative providing for one after another all the types of the preventions or of the orders related to the non-identification, the detailed expunging, etc., through the numbering of the rules which are crucial for the protection of the private life

       

      1. After article 43 provides for the principle of respecting the rights of the privacy of the child witness or victim in the criminal process, it numbers the cases when this provision shall not be violated, and it furthers stipulates the additional measures that will help to ensure or to guarantee at the best the protection of the child’s privacy.

       

      1. The protection provided for in article 43 regarding the child’s privacy is carried out through at least eight comprehensive measures from letter a) up to letter ë) which have a generic character because they are stipulated for all the children involved in the criminal process as witnesses or victims. It should be borne in mind that a special treatment will be given to a minor under the age of 14, where the measures provided for in Article 43 must also be combined with the arrangements provided for in this Article from Article 18, paragraph 1, Article 35, paragraph 2 Article 42, paragraph 1, 2, 4 and Article 77, paragraph 7. While for a minor under Article 14, Article 43 should be read in conjunction with Article 40 paragraph 1.

       

      1. The legislator has structured article 43 in such a way, leaving letter f) at the end as an open possibility, giving to article 43 a non-exhausting nature due to its broad flexibility. This means, that case after case, the court is entitled to add to the list provided for in article 43 other measures, that have not been mentioned concretely, which may be necessary for specific cases to protect the mental and physical health of the child, in the best possible way. This means that the cases included in this article are reviewed case after case depending on the scientific and technical information and the risks, too. Consequently, these measures will be reviewed or expanded, according to the needs.

       

      1. Article 43 includes eight protection measures which may be grouped in three directions: The first group includes the measures provided for in letters a), ç) and d), which stipulate the measures of a technical nature, such as the expunging from the records, alienation of the image, of the voice or of the appearance of the child for his/her non-identification, etc.; The second group includes the measures stipulated in letters dh) and ë) providing for the measures of a procedural character related with the progress of the trial, with the testimony of the child witness or victim, such as the adjudication in camera and the permission to recess the process to soothe the emotional condition of the child victim or witness; The third group includes the measures listed in the letters b), c) and e) which have a more imperative character, because they use an imperative language, including the verbs such as “prohibiting”, “ordering”, etc. referring to the measures that should be taken for prohibiting the defendant's defence counsel from identifying the child, the order for not making the letters that identify the child public, and the order to remove the accused from the courtroom temporarily.    

       

      1. As a conclusion, the structure of article 43 of the CCJC intermingles with the principle, the technical, procedural elements, where the imperative model is intermingled with the permissive rules with the final purpose: the anonymity, taking into consideration the best interest of the child, without ignoring the rights of the accused.
      1. The subjects that may require the rendering of the measure: Based on the request of the child victim or witness, the child’s legal or procedural representative and/or the child’s defence counsel, or ex officio, taking into consideration the best interest of the child, case after case, the court orders taking one or more due and appropriate measures to protect the privacy as well as the physical and mental well-being of the child , and to prevent a secondary suffering or victimization With regard to the phrase “The court shall, ex officio, at the request of a child victim or witness, ...” article 43 stipulates the two main ways that initiate a decision-making to take measures for the protection of the privacy of the child in order not to harm him from the provision of information and documents which identify him/her, when he/she is in the capacity of a witness in the criminal process or of the victim.  The first way that initiates the process from the procedural perspective is the request addressed by the child or his legal or procedural representative (article 3 of the CCJC, paragraphs 16 and 17) and/or his defence counsel.  According to the formal perspective, article 43 does not stipulate the form of addressing the request.  Consequently, we may say that this request may be addressed in writing or verbally during or prior to the criminal judicial trial where the child is a part of this process. It is important to have the request documented in the minutes of the hearing.   The second way of initiating a decision-making for the defence of the privacy of the child comes directly by the court itself. The verb “...the court ... orders accordingly,” used in this paragraph means that from the formal viewpoint, the court proceeds upon “an order” to decide on the concrete measure that should be taken and the body/subject that should fulfil or execute it. The court may also apply to the Commissioner for the Right to Information and Protection of Personal Data, pursuant to Article 31/1, letter g) of Law no. Nr. 9887, dated 10.03.2008, as amended by law no. 48/2012, amended by the Law No. 120/2014, "ON PROTECTION OF PERSONAL DATA" stipulates that: “g) at the request of the court examining the case, shall submit a written opinion on any matter related to the right of information”.

       

      1. The subjects that are obliged to implement the measure: With regard to the criminal justice process for children, article 43 underlines the rules and the principles that are mandatory to be enforced by both the individuals and the institutions that are related to the children victims and witnesses. Such principles include the respecting and the protection of the private life, the protection of life and health closely related to the physical and mental well-being, as well as the principle of a special importance of the child’s best interest. 

       

      1. Regarding the term “the taking of one or more adequate and appropriate measures”, the legislator gives to the court the right/discretion and the duty that, according to the specifications of each judicial case, to decide to give a measure or to combine together some of them. However, the court is obliged to take into account other provisions such as those of the CPC, respectively Articles 58, 58/a, 58/b or 361/a. One of the relevant rights granted is also provided for in Article 58/a paragraph 4 of the CPC. This means that it must be clear that the court has some rules that it should uphold and implement in its activity. In order to understand the expression “adequate and appropriate measures”, we should explain the fact that before the court decides which one or ones of the measures it will take for the protection of the privacy, it should create the conviction to determine the risk or damage the child may suffer because of making his identity public as well as the private data that are related with him/her. Therefore, the court should hear the child carefully, his defence counsel or the representatives of the child’s interests to reach a conclusion regarding his psychological condition and his physical and mental integrity. The court may take into consideration even the opinion of the experts - psychologists or social workers - who explain professionally the condition of the child to take the appropriate measure, eventually.  We are explaining such a point, to highlight the fact that there should be an adequate measure for the adequate case and for the adequate person.   The legislator uses the phrases “adequate measure” or “appropriate measure”, which sound judicially as complementary to each-other.   In order for a measure to be the “adequate measure”, we should underline the fact that this is mostly related to the usefulness of taking the measure in relation to the child, which means the measure that protects him and his interests better.

       

      1. With regard to the phrase “the best interest of the child”, provided for in the first sentence of article 43, we may say that being guided by the best interest of the child means that all the discussions, the actions and the decisions that are related to the child shall be made with the final purpose of enhancing and encouraging the happiness of the child, of his/her economic well-being, of the security, of the mental health and of the emotional development until he/she reaches the age of maturity. Paragraph 9 of article 3 of the CCJC provides for even the concept “The best interest of a child” means the right of the child to a healthy physical, mental, moral, spiritual, social development and the right to enjoy the family and social life suitable to the child. (article 3 paragraph 9 of the CCJC) The best interest of the child is one of the principles which originates from article 3 of the Convention of the United Nations on the Rights of the Children[1]. The evaluation of the best interest of the child means evaluating and balancing “all the necessary elements to take a decision in a specific situation for a child or special group of children. In the case of taking the measures for the protection of the privacy of the child, having as a primary request the analysis of the best interest of the child, the court shall analyse some essential indicators such as: the viewpoints and the aspirations of the child; the child’s identity, including the age and the gender, the personal history and the background; the care, protection and the security of the child; the child’s well-being; the family environment, the family relations and the contacts; the social contacts of the child with the peers and the adults; the situations of vulnerability, that is to say the risks the child faces and the sources of protection, elasticity and empowerment; the development of the child and his gradual transition towards maturity and an independent life and every other specific need of the child.

       

      1. The “Private life” of a child includes everything personal, which starts from the data on his identity, the generalities, medical data, data on the school and education, specifications or details related with his behaviour in society and family, with the way how he carries out the daily emotional, physical, anatomic, human, personal and family actions and needs. This includes even the data which are related with the issues, vices or the illegal actions where he is involved as a witness, victim or a person accused of having committed them. (For more information, see the comment on the term “privacy” art article 21 of this Electronic Commentary.) 

       

      1. With regard to the phrase: “physical and mental well-being” of the child, used in the first paragraph of article 43, we may say that the word well-being means the entirety of the family and social conditions which impact directly the upbringing of the child and his physical and intellectual development. According to this, the well-being means the living conditions, which are related to the food, life security, residence, upbringing, education, health care, the development of the cultural, sportive and artistic aspects, and other conditions similar to them. All these elements considered together or separately impact directly or indirectly on the spiritual and physical condition of the child in every aspect of his private life and vice versa.[2]

       

      1. With regard to the phrase "to prevent the suffering and the secondary victimization" used in the first paragraph of article 43, it is important to emphasize the fact that the measures taken by the court in the framework of article 43 imply the prevention of a condition where it is likely that sufferings may be caused to the child. The sufferings may be of a physical nature related to his health and physical integrity, as well as sufferings of spiritual or psychological nature. Regarding the term ”secondary victimization” , we should refer to the explanation provided for in article 3 paragraph 24 of the CCJC, according to which: “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 and paragraph 20 of article 3, according to which:  “Revictimization” 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.”  Both these explanations may be equal to the expression secondary victimization which is a synonym of their meaning.

       

      1. The phrase “deletion from the public data” provided for in letter a) of article 43 of the CCJC, means some actions/the actions of a technical character, which cause the removal from the system of the data which can be used to identify the child. With regard to the nature of the data, we can say that this refers to any electronic or mechanic/physical registration form in hard copy, in the form of a file or in the form of a document or letter, in a descriptive form (narrative) or in a statistical form or in the form of a table. It is important to understand the fact that wherever the data for a child witness or victim have been positioned, arranged, processed, used or analysed, despite the form where they are kept , they have to be destroyed in order for them not to be retrieved or used by any subjects any more.

       

      1. The phrase “that the court may deem necessary” is used at letter c) article 43. In this case, this phrase refers to the measure of the data, the quantity of the documents and the type of those documents that may become public and those ones which should not become public. Furthermore, it may also refer to the time frame to make public or not to make public data, facts, information and documents that are related to the private life of the child.  It is important that the adjective “necessary” should prevail in the analysis and that there should be fairness in relation to this case. The court should always refer to the best interest of the child.  What is necessary is that element that is useful to protect the private life of the child.   The court is asked to play its role and to consider what is really necessary, protecting the measure of the best interest of the child victim and of the justice interests.

       

      1. The phrase “within a reasonable period” used in letter ç) of article 43 means that the time frame within which the full name and the date of birth of the child will become transparent will be the shortest time frame, meanwhile, with regard to the rest of the time, the defence counsel of the accused will refer just to a decoded number, in order for the identity of the child witness of the criminal offence and/or victim will be preserved in the best way, in order to ensure his protection and the avoidance of the risks that may be caused if the accused reveal the identity of the child. The term “reasonable remains a bit vague to be translated within a fixed period of time. This was the reason why the legislator is addressed to the applicants of the provision orienting them to try to use the reasoning and the logical argumentation within the circumstances of the concrete case to minimize the risk posed against the child due to the identification. The reason why this number, given to the child, does not stay throughout the entire trial is related to the fact that the apart from the protection of the private life of the child, a fair balance should be established even regarding the protection of the accused person’s right to be defended, therefore an identification number is given to his disposal for reference. Letter ç) of Article 43 must be implemented in accordance with Article 58/a[3] of the CPC, which provides for the rights of the juvenile victim, and Article 58/b[4] of the CPC that provides for the rights of the juvenile the sexually abused victim and the victim of human trafficking. Likewise, letter ç) of Article 43 with Articles 21 and 138 of the CCJC, which provide for the protection of the private life of the minor and the recognition of his personal disposition and his destruction.

       

      1. Regarding the phrase “alteration of the image/appearance/presentation or voice” provided for in letter d) of article 43, stipulates some action/the actions of a technical character which cause the modification of the normal voice of the child, the modification of the presentation using a shadow on the child’s face, putting him in darkness or covering the face with a spot of light in order for the child not to be identified. These technical measures are taken in a mechanic way covering the images, so that they cannot be seen, or through the interventions via equipment and specialized persons, changing the voice of the child. Letter d) provides for other measures of a technical and electronic character such as “testifying behind an opaque shield”; “the cross-examination in another place and simultaneous transmission to the courtroom by means of closed-circuit”; etc.  The same purpose and interpretation shall be even for these technical approaches, just like for the measures mentioned above at letter d). 

       

      1. The phrase “a qualified and appropriate mediator”, used in article 43, paragraph d) refers to a mediator licensed according to the law on mediation[5] and specialized through the continuous trainings in the field of criminal justice for children.

       

      1. The principle of an in-camera trial is a procedural principle foreseen in depth also in 340 of the CPC [hyperlink]. In this article there is a particular emphasis on the rule that the court decides that the judicial examination or some of its actions should be conducted in camera, when it is necessary to protect the safety of witnesses or defendants; when deemed necessary in the questioning of juveniles as witnesses. This principle has a special place in the CCJC and is encountered in several provisions of the CCJC and among other things even in letter dh) of article 43. (article 34, paragraph 3 of the CCJC), (article 41, paragraph 5 of the CCJC), (article 89 of the CCJC. (article 11, letter ë)). The phrase “holding in-camera hearings” means that in the cases when a child is a victim or the witness, he should be protected from the intimidation or the shyness he may feel because of the presence of the public, media, of the participants in the adjudication, who, procedurally, do not have to be present during the cross-examination of the child. Holding in-camera hearings means that the child will be cross-examined in the presence of the judge, of the parent, of the defence counsel, of the legal or procedural representative, and that it is the psychologist who may shorten the list of the people that will be present during the cross-examination of the child accordingly, excluding the individuals who damage the mental and physical balance of the child’s condition. Concerning the questioning of juvenile witnesses under 14 years of age, letter dh) of Article 43 must be seen in conjunction with paragraph 1 and paragraph 3 of Article 361/a of the CPC that addresses the questioning of the juvenile witness[6]. This same article in paragraph 2 also discusses the rules of questioning juveniles over 14 years old[7]. When the minor has been heard during the investigation and his declarations are recorded under paragraph 4 of Article 58/a of this Code, they are used as evidence at trial if the defendant and the defence counsel give consent. Juvenile statements may be used as evidence even if the defence counsel has been allowed to question the juvenile through the experts and the expert expresses the opinion that repetition of the question may damage the psychological conditions of the juvenile.

       

      1. The phrase “judicial debate” which is used at point e) of article 43 means the respecting of the adversarial principle in the criminal proceeding, when the child refuses to witness in front of the accused person. Therefore, the court orders the accused to leave the hearing in order not to intimidate or become an obstacle for the child to declare his statements freely. In order for the child witness or victim to be heard by the defence counsel of the accused during his cross -examination, letter e) provides for the realization through the defence counsel of the judicial debate to respect the rights of the accused in the process. Paragraph e) of Article 43 regarding the manner of conduct of the judicial arguments, the rules of hearing of the minor and the rapport of the minor with his defendant should also be seen in conjunction with Article 361 of the CPC regarding differential treatment when the minor is 14 years old from the minor who is over 14 years of age.

       

      1. The phrase provided for in letter ë) of article 43 “allowing recesses during the child’s testimony” means that the court is entitled to order one or several breaks during the time when the child is asked to declare his statements on the case or the people involved in it. The term “allowing” means that the child himself or his legal representative or the defence counsel are entitled to claim this interruption in case they notice that the child needs a rest, some relaxation, etc. from the physical and emotional aspect;

       

      1. The term “anonymity” provided for in letter f) of article 43 means that the court may order that the identification of the child witness or victim will never be revealed or identified. It will remain “anonymous” throughout the judicial process taking into consideration the best interest of the child and the rights of the accused person.

       

      1. Regarding letter f) of article 43, we may say that the expression “taking any other measures that the court may deem necessary” permits the selection of the other measures listed in this article in a non-exhaustive way. These measures may be judged by the court depending on the specifications of the case. What the court should analyse carefully in these cases is always the consequence that comes from such a measure.  If the measure protects the child well, if it takes care for the protection of the identity and his personal and private data, prevents his physical, mental and emotional injury, then the court is entitled to order this measure.  In such a case, “necessary” means that if this measure is ordered by the court and it serves to the child and to his best interest, then it should be taken.

       

      [1] See Link:http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx, Last accessed on 07.09.2017.

      [2]See http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312247 

      [3] This article was added by law no. 35/2017, dated 30.03.2017.

      [4] This article was added by law no. 35/2017, dated 30.03.2017.

      [5] See article 5 and 9 of Law no. 10835/2011 “On mediation in dispute resolution”. Accessed at: http://www.drejtesia.gov.al/files/userfiles/Komisioni_i_licensimit/Ligji_nr_10385_dt_24.02.2011.pdf

      [6] This article was added by law no. 9276, dated 16.09.2004, and amended by law no. 35/2017, dated 30.03.2017.

      [7] Paragraph 2 of article 361/a provides: “A child witness aged 14 to 18 years is conducted by the presiding judge of the panel of judges.  During interview, special care is given to avoid harmful consequences on his mental health, especially if the child is a victim of the criminal offence.  In compliance with the circumstances, the interviewing may be conducted as foreseen in paragraph 1 of this article.”

      1. This is the first time in the Albanian legislation, that a provision such as the one of article 43 of the CCJC, where there is a specification on the principle for the protection of the private life of a child in the process of criminal justice for children.

       

      1. Prior to the CCJC, regarding the general aspects for the protection of the personal data, in the framework of the private life of an individual, there used to be law No. 9887, dated 10.03.2008, amended with law no. 48/2012 “On the protection of personal data”[1], which would regulate through its articles the obligation for the institutions that process the data, that take care for their protection in the framework of respecting the privacy of the people without making any differentiations based on the age or due to any other criterion. What this law underlines, was and remains the classification of the sensitive data, where those individuals related with the more vulnerable groups due to gender, race, age grounds, etc. are of a highly controlled status.

       

      1. Prior to law no. 9887, dated 10.03.2008, “On the protection for the personal data”, there used to be the Criminal Code which would provide for the offences for the protection of the private life from the publication of the personal data, particularly article 121, which provides for the installation of the apparatuses which serve to listen to or to register the words or the images, to listen to, to register or to transmit the words, the fixation, registration or the transmission of the images as well as the preservation for publication of these data which expose an aspect of the private life of the person without his consent, constitutes a criminal contravention and is sentenced with a fine or imprisonment up to two years; as well as article 313/b which provides for as a criminal offence the provision or the publication through any forms, in contradiction to the law, of the data of a classified and confidential character which threaten the life, the physical integrity or the freedom of the protected persons, to reveal these people. According to the legislation in force for the protection of the witnesses and justice collaborators, this offence is sentenced with a fine or with imprisonment up to two years. This article provides for that in the cases when there are serious consequences, or when this offence is committed by one of the persons, with the responsibility to protect the classified and confidential character of the data, or when the offence has caused the death, up to ten years are added to the sentence measure.  

       

      1. In the explanatory report to the Criminal Code it has been evidenced that: “amendments to the Criminal Code make … a more accurate and clearer stipulation of these criminal offences guaranteeing the protection from the publication of the information on the identity of the protected, anonymous or vulnerable witnesses, or of a person whose identity is in the procedure for the inclusion in the protection program or of the person included in the protection program.”[2]

       

      [1] Link: http://www.arsimi.gov.al/al/program/mbrojtja-e-te-dhenave-personale/ligji-per-mbrojtjen-e-te-dhenave-personale, Last accessed on 04.09.2017

      [2] Link: https://www.parlament.al/wp-content/uploads/2017/01/RELACION-KODI-PENAL-I-REPUBLIKES-SE-SHQIPERISE.pdf. " Last accessed on 04.09.2017.

      1. CONVENTION ON THE RIGHTS OF THE CHILD Adopted by the General Assembly of the Organisation of the United Nations on November 20, 1989[1]is one of the most important international acts, which provides the leading orientation that the private life of the child is entitled to a special protection which is related to the protection of the best interest of the child.

       

      1. Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European.[2]

       

      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 2011/93/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. Resolution No. 2 on child-friendly justice, adopted at the 28th Conference of European Ministers of Justice (Lanzarote, October 2007)[5]

       

      1. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”, 1985)[6]

       

      1. The United Nations Guidelines for the Prevention of Juvenile Delinquency (“The Riyadh Guidelines”, 1990)[7]

       

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

       

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

       

      1. The European Convention on the Exercise of Children’s Rights (1996, ETS No. 160)[10]

       

      1. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007, CETS No. 201)[11]

       

      1. CRC General Comment No. 14 (2013)[12]

       

      1. Directive 2002/58/EC of the European Council and Parliament, dated July 12, 2002 related to the processing of the personal data processing and privacy from the electronic communications. (concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) treats the orientations for the member states to ensure the protection of the personal data from their use through the internet through legislative means.[13]

       

      [1] Linku: https://www.unicef.org/magic/media/documents/CRC_albanian_language_version.pdf

      [2] http://ec.europa.eu/justice/criminal/files/directive_2011_99_on_epo_en.pdf

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

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

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

      [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/168007cdaf

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

      [12]https://www.crin.org/en/docs/GC.14.pdf

      [13] See Link: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32002L0058

  • Reports, opinions, recommendations and statements

    1. UN Guidelines on Children as victims and witnesses of crime, 28 October 2009[1] based on the Report of the Intergovernmental Expert Group Meeting to Develop Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, held in Vienna on 15 and 16 March 2005.[2]

     

    1. Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice[3] (Adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers' Deputies) adopted by the Committee of Ministers of the Council of Europe on 17 November 2010[4].

     

    1. Guidelines on the protection of individuals with regard to the processing of personal data in a world of Big Data of Consultative Committee of the Convention for the protection of individuals with regard to automatic processing of personal data (T-PD)[5].

     

    1. Opinion 03/2016 on the evaluation and review of the Privacy Directive (2002/58/EC) Adopted on 19 July 2016.[6]

     

    1. Witness protection programmes EU experiences in the international context Library Briefing Library of the European Parliament, 28/01/2013.

     

    1. European Committee on Legal Co-operation (CDCJ) a. Abridged report of the 85th plenary meeting (Strasbourg, 11-14 October 2010) b. Draft Recommendation CM/Rec(2010)… of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities and its Explanatory Memorandum.[7]

     

     

    1. Opinion 02/2016 on the publication of Personal Data for Transparency purposes in the Public Sector, adopted on 8 June 2016.[8]

     

    1. Statement on the 2016 action plan for the implementation of the General Data Protection Regulation (GDPR) adopted on February 2, 2016.[9]

     

    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.[10]

     

    1. COMMITTEE ON THE RIGHTS OF THE CHILD Fifty-first session, Geneva, 25 May-12 June 200 GENERAL COMMENT No. 12 (2009).

     

    Decisions of the European Court of Human Rights 

    1. Bellerín Lagares v. Spain, delivered on 04.11.2003, "ECHR held that Art. 6 of the European Convention on Human Rights does not explicitly require the interests of witnesses or victims of crimes to be taken under consideration under this article. ECHR recognises that questioning could affect their private life, freedom or security but considers that such interests are protected by other normative legislation. It therefore means that Contracting States must organise their criminal trials in such a way as to protect those interests as far as possible.[11]

     

    1. The European Court of Justice (ECJ), in its preliminary ruling delivered on 16.6.2005 concerning the case against Maria Pupino, held that national courts must be able to authorise young children who claim to have been victims of maltreatment to give their testimony in accordance with arrangements allowing those children to be guaranteed an appropriate level of protection. In its ruling the ECJ referred to legislation including the European Convention on Human Rights."[12] Other suggestions for methods for children to give evidence in criminal trials can be found in the European Commission’s 1997 Proposal concerning the Intimidation of Witnesses and the Rights of Defence, as well as the United Nations (UN) Declaration on the Rights of the Child. 

     

    1. S.N. v. Sweden;2 July 2002.[13]The applicant was investigated on suspicion of committing sexual offences against a child. The videotaped first police interview with the complainant, then aged 11, was shown during the hearing. The record of the complainant’s second police interview was read out for the transcript, but no examination of the complainant in person was ordered. The District Court also heard evidence from the complainant’s mother and teacher. The District Court noted that the outcome of the case was entirely dependent on the credibility of the complainant’s statements and sentenced the applicant to eight months' imprisonment. Based on the reasons given above, the ECHR held that there had been no breach of the applicant’s rights under Article 6, ss. 1 and 3 d of the Convention because his counsel had not been in attendance at the second interview of the complainant. Nor was the applicant denied his rights under Article 6, s.3 d on the grounds that he was unable to examine or have examined the evidence given by the complainant during the trial and appeal proceedings. The videotape of the first police interview was shown during the trial and appeal hearings. The record of the second interview was read out before the District Court and the audiotape of that interview was played back before the Court of Appeal. The ECHR held that those measures must be considered sufficient to have enabled the applicant to challenge the complainant’s statements and his credibility. Because the Court of Appeal had also considered the complainant’s statements sufficiently carefully, the ECHR found that after the taped interviews, proceedings against the applicant, taken as a whole, could not be regarded as unfair and there had accordingly been no breach of Article 6, ss. 1 and 3 d of the Convention.

     

    1. B. v. Finland;24 April 2007.[14]The applicant was suspected of sexually abusing two children. The applicant contested the alleged sexual abuse before the District Court. The District Court watched two videos of the then 9- and 13-year-old complainants, but the applicant did not request to examine them in court. The District Court heard the applicant, the co-accused and ten witnesses, including a psychiatrist, two psychologists and several persons who had taken care of the children and offered them a foster home over the years. The District Court noted that the case turned on the assessment of the credibility of the children's statements and sentence the applicant to seven years’. The ECHR noted that the children’s statements, which had been recorded in the pre-trial investigations and viewed on videotape in the District Court, constituted virtually the sole evidence on which the courts' findings of guilt were based. The witnesses heard by the courts had made no observations on the alleged acts and gave evidence only on the children's reliability. The applicant and her counsel had been afforded an opportunity to have questions put to the children during the pre-trial investigation. However, they did not avail themselves of that opportunity. For the reasons cited above, the ECHR found that there was nothing to indicate that the rights of the defence were not respected before the applicant's being convicted and sentenced by the District Court. The same considerations applied to the proceedings in the Court of Appeal as far as the use in evidence of the children's pre-trial statements was concerned. As for the new information emerging later against the applicant, the ECHR noted that it was open to both parties to submit to the court whatever arguments they wished to make with regard to the video-recorded evidence and the information about the retraction by the second complainant of her allegations. Thus, the ECHR was not convinced that the rights of the defence had been infringed by the absence of an additional interview with the second complainant. Accordingly, there had been no violation of Art. 6, s. 1 taken together with Art. 6, s. 3 d.

     

    1. W. v. Finland; 24 April 2007[15]The applicant was charged with having sexually abused four children. The applicant denied the charges before the District Court. The District Court held an oral hearing during which videotaped interviews with the complainants, then aged 7 and 9, as well as two other complainants were presented. The children were not heard in person. The court also heard evidence from the applicant, the parents of the two complainants, the mothers of the other two complainants as well as a psychologist. The District Court stated that the case turned on an assessment of the credibility of the children's statements, and that questioning the children in court would not have added anything significant to the case. The District Court sentenced the applicant to two years and three months' imprisonment. The ECHR found that the children's statements as recorded on videotape during the pre-trial investigation and played back in the District Court and the Court of Appeal constituted virtually the sole evidence on which the courts' findings of guilt were based. The witnesses heard by the courts, the parents, had made no observations on the alleged acts and gave evidence only in respect of the perceived changes in the children's personality and on their reliability. The psychologist testified only about the reliability of the children's statements. The applicant was not given an opportunity at any stage to have questions put to the children. Before the close of the pre-trial investigation and having watched the video recordings of the children's statements, the applicant requested that the children be interviewed again and that his questions be put to them. But the applicant could not have obtained the appearance of any of the children in person before the courts. The ECHR found that the use of this evidence involved such limitations on the rights of the defence that the applicant could not be said to have received a fair trial and therefore there had been a violation of Art. 6, s. 1 taken together with Art. 6, s. 3 d.

     

    [1] See Link: https://www.un.org/ruleoflaw/blog/document-category/victim-witness-protection/

    [2] See Link: https://www.un.org/ruleoflaw/files/V0582605.pdf

    [3] See Link: https://rm.coe.int/16804b2cf3

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

    [5] Linku: https://rm.coe.int/t-pd-2017-1-bigdataguidelines-en/16806f06d0. Last accessed on 04.09.2017.

    [6] Link:http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion recommendation/files/2016/wp240_en.pdf.

    [7] https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016805ce017

    [8] Link: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2016/wp239_en.pdf. Last accessed on 04.09.2017.

    [9] Link: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2016/wp236_en.pdf

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

    [11]https://www.coe.int/t/dghl/cooperation/lisbonnetwork/Themis/ECHR/Paper5_en.asp

    [12]https://www.coe.int/t/dghl/cooperation/lisbonnetwork/Themis/ECHR/Paper5_en.asp

    [13]https://www.coe.int/t/dghl/cooperation/lisbonnetwork/Themis/ECHR/Paper5_en.asp

    [14] Id.

    [15] https://www.coe.int/t/dghl/cooperation/lisbonnetwork/Themis/ECHR/Paper5_en.asp

    1. Analysis of the Justice System in Albania 2015.[1]

     

    1. The annual report of the Commissioner for the protection of personal data before the Parliament, 2016.[2]

     

    [1] Link: http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdfLast accessed on 03.09.2017

    [2] http://www.idp.al/wp-content/uploads/2017/02/Raporti_Vjetor_2016.pdf, Last accessed on 03.09.2017

  • Article 35 of the Constitution of the Republic of Albania[1]

    Law No. 9887, dated 10.03.2008, amended with law no. 48/2012 “On the protection of personal data”[2]

    Criminal Code of the Republic of Albania, adopted with law no. 7895, dated 27.1.1995, as amended, articles 121, 121/a, 122, 123, 313/b.[3]

     

    [1] http://komentarielektronik.magjistratura.edu.al/sq/eli/fz/1998/8417 Last accessed on 04.09.2017

    [2] Link: http://www.arsimi.gov.al/al/program/mbrojtja-e-te-dhenave-personale/ligji-per-mbrojtjen-e-te-dhenave-personale Last accessed on 04.09.2017

    [3] http://komentarielektronik.magjistratura.edu.al/sq/eli/fz/1995/7895. Last accessed on 04.09.2017

  • Decisions of the Commissioner for the protection of personal data: 

    • DECISION No. 4, dated 27.12.2012 "On the determination of the cases for the exceptions from the obligation for the notification of personal data that are processed";
    • DECISION No. 5, Dated 27.12.2012 "On some addenda and amendments to decision no.2, dated 10.3.2010 “On the determination of the comprehensive rules for the security of the personal data”.[1]
    • Order no. 44/2016 of the Commissioner “On the conditions, the processing criteria and the time for keeping the personal data according to law no. 60/2016”, an obligation, provided for in the law “On the protection of the whistle-blowers”.
    • Joint Directive No. 515, dated 27.09.2016 of the Minister of Interior and the Commissioner “On the processing of the personal data by the Border Guards”, pursuant to law no. 71/2016 “On the border control”.
    • Directive no. 21, dated 24.09.2012 “On the determination of the rules for the security of personal data processed by the big auditors”.
    • Directive no. 45, dated 31.10.2016 “On an amendment in Directive no. 3/2010 “On the processing of the personal data in the system of video-surveillance in buildings and other premises.”
    • Directive “On the determination of the auditors who have the obligation to notify the Commissioner’s Office on the processing of personal data, for which they are responsible, for the first time or when the change of the status of the processing notification is required”.
    • Directive “On the processing of the sensitive data and the receipt of the authorizations”.

    Link: https://www.parlament.al/wp-content/uploads/2017/03/Raporti-vjetor-2016-derguar-ne-kuvend.pdf

    Link: http://www.publeaks.al/komisioneri-per-te-drejten-e-informimit-dhe-mbrojtjen-e-te-dhenave-personale/

     

    [1]http://www.publeaks.al/komisioneri-per-te-drejten-e-informimit-dhe-mbrojtjen-e-te-dhenave-personale/

    http://www.idp.al/vendime-2/

  • Decisions of the Constitutional Court 

    Decision no. 16, dated 11.11.2004 of the Constitutional Court.

  • Felfoldi Eniko "The rising importance on the protection of witnesses in the European Union", 2006, ISBN 9782749206400 Linku: http://hudoc.echr.coe.int/eng?i=001-67930

    Bette L. Bottoms, Cynthia J. Najdowski, and Gail S. Goodman, eds.  The Guilford Press:  New York, NY,  2009 "Children as Victims, Witnesses, and Offenders", Reviewed by GT Swart, MD, FRCPC https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3143704/

    Juvenile offenders and victims ojjdp.pdf http://catal0g.info/downloads/juvenile-offenders-and-victims-ojjdp.pdf

    The Child’s Attorney ABA Customer Service “The only text directed at how to by Ann Haralambie 750 N. Lake Shore Dr practice law for kids.” Chicago, IL 60611. 800/285-2221

    https://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/resources.authcheckdam.pdf

    In the Best Interest of the Child The Free Press “Required reading….” by Joseph Goldstein, Anna Freud, c/o Macmillan Pub. Co., Inc. Albert J. Solnit & Sonja Goldstein 866 Third Ave. New York, NY 10022 800/223-2336

    https://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/resources.authcheckdam.pdf

    Evidence in Child Abuse & Neglect John Wiley & Sons, Inc. “Since evidence is the hardest part of (2 Volume set) Eastern Distributing Ctr. the case, this book is very practical.” by John E.B.Myers One Wiley Dr. Somerset, NJ 08875-1272 800/225-5945 ext. 2497

    https://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/resources.authcheckdam.pdf

    Michael Freeman "A Commentary on the United Nations Convention on the Rights of the Child, Article 3 the Best Interest of Child", 2007,

    Linku:https://books.google.al/books?id=zFOwCQAAQBAJ&pg=PA61&lpg=PA61&dq=commentary+on+best+child+interest&source. Vizituar së fundmi më 07.09.2017.

    US Department of Justice. "Juvenile Justice" Prepared by the Mational Institute of Correction, NIC Information Center Date created January 2014, Updated May 2017 Accession No. 027879. Nancy E. Down "A new juvenile Justice System" 2015 https://books.google.al/books?isbn=1479898805 Vizituar së fundmi më 03.09.2017.

    Barry Krisberg "Juvenile Justice: Redeeming our children" 2005, https://books.google.al/books?isbn=0761925015, Vizituar së fundmi më 03.09.2017.

    John T. Whitehead and Steven P. Lab "Juvenile Justice: An Introduction" 2012, https://books.google.al/books?isbn=1455778923, Vizituar së fundmi më 03.09.2017.

    Donald G. Campell "Juvenile Justice case proceesing" 2007, https://books.google.al/books?isbn=1462821103, Vizituar së fundmi më 03.09.2017.

    Trevor Buck "International Child law" 2014, https://books.google.al/books?isbn=1135970181, Vizituar së fundmi më 03.09.2017.

    Ted Rubin "Juvenile Justice, Policies, Practices and Programes" Vol I, 2003, https://books.google.al/books?isbn=1887554335. Vizituar së fundmi më 03.09.2017.

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Marjana Semini
Arta Mandro, Koraljka Bumči