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

Article 44: Restorative justice measures

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1. The competent body shall inform of the restorative justice programmes the child in conflict with the law and the victim, the legal or procedural representative, and where appropriate, the defence counsel of the child.

2. The competent body shall inform the child in conflict with the law, the legal representative or the procedural representative and, where appropriate, the defence counsel of the child, of the possibility to request restitution and compensation of damage in the court if the programme of restorative justice is not completed.

Table of Content

      1. The purpose of Article 44 is identifying and setting out the obligation of the competent bodies pertaining to the information regarding a matter of specific importance of the minors and other parties to criminal justice proceedings, such as the notification of the restorative justice programs. The article aims at establishing the appropriate relationship even by way of making complementary regulation through the provisions contained in Articles 14, 34, 61, 62, 63 and 64 of CCJM while establishing the necessary harmony among them.

       

      1. Article 44 aims at identifying along with the minor also other parties being of the same interest as the minor in order to assist that the minor benefit out of the rehabilitation and restorative programs which bring about the diversion from the criminal prosecution and punishment of the minor. Included in this group are the legal or procedural representative and the defence lawyer of the minor

       

      1. Article 44 aims at generalising the entire competent bodies with the obligations they carry. Due to this reason, the lawmaker has not made specification of the competent bodies one after the other regarding the obligation the information on the restorative justice programs in order to avoid the redundant repetitions.
      1. Article 44 has been broken down into two paragraphs which appear to be simple and clear. Their contents are of a descriptive nature of obligations for information in two hierarchically scaled levels: first, regarding the restorative justice programs in general and, second, regarding the possibility of redressing the damage as long as the programs provided for in the first paragraph of Article 44 fail and do not yield the expected outcome.

       

      1. Article 44 has associated into a significant legal triangle the offending minor, the minor having committed a criminal offence and their defence lawyers, legal or procedural representatives and the competent bodies related to the process of criminal justice for minors, regardless whether they are the justice bodies or the bodies assisting with the restorative justice programs. This provides the structure of Article 44 with flexibility while not having an exhaustive effect. Each of the bodies having and supposed to have the appropriate information on the restorative programs have to transmit it to the minor regardless whether the latter is a defendant or victim, since, at the end of the day, they benefit from the restorative justice relying on the principle that none of the parties involved therein loses.

       

      1. Regarding the above, the structure of Article 44 at the same time aims at determining the circle of persons that might be involved in a restorative justice procedure or program highlighting their role against the parties and the process in its entirety. The duty for information is mandatory just for the competent bodies (Article 34 of CCJM) while the presence during the restorative justice proceedings is not mandatory, however, it depends on the will of the parties involved in the conflict (accused minor and victim) and on the evaluation of other participants, such as the legal representative of the minor, psychologist, employee of the Unit for the Protection of the Rights of the Child, prosecutor and/or persons appointed by him, make to the effect of improving the relations between the minor being accused of having committed a criminal offence and the victim (Article 63 and Article 64 of CCJM).
      1. As a general comment of Article 44 it can be inferred that it is an Article combining the institutional obligations of the bodies involved in the process of criminal justice for informing the minors about the principle of voluntarism of parties involved in the process of restorative justice for benefiting from the restorative justice programs, which not only have no binding impact, but they also have to rely on the principle of free will due to the personal character of the participation of parties. Article 44, para. 1, aims at identifying the information of the victim without any distinction whether he is an adult or a minor. We state this because the restorative justice program requires the involvement of the couple victim - defendant to be identified and this to be feasible. There is no restorative justice with the victim being absent, same as there cannot be a restorative justice without the minor.

       

      1. Article 44, para 2, highlights the second purpose connected to the field of information. The second purpose of this provision is making information available regarding the possibility of compensating the damage as long as the restorative justice program has not been implemented. Failure to implement should not be indispensably connected to the guilt of the accused minor. Article 44 is partially of a procedural nature and it refers to one or more extra-judicial proceedings, aiming at alleviating the consequences of the criminal offence, mediation or settlement of the conflicting parties, as well as their integration and rehabilitation of the victim in order to surpass the physical and psychological consequences of the criminal offence. We say ‘mainly of the victim’ since the restorative justice programs assist and defendant to get integrated in the social life, while avoiding the recidivism for him in the future.

       

      1. Despite the set-up of Article 44 not being of a referral nature, yet, it has to be read and implemented in co-relation with other provisions of CCJM providing and regulating restorative justice programs. (para. 12 and 15 of Article 3; para. 2 of Article 14; letter ë) para. 2 of Article 34; Article 34 regarding the right of the minor for information; letter b) para. 1 of Article 61; letter a) para. 1 of Article 62 and Article 63 of CCJM). Article 44 also aims to combine the juvenile justice procedure with procedures such as mediation, which is the main form of making possible the restoration of justice, negotiation, etc. In this regard, Article 44 relates to Article 64 of CCJC).

       

      1. In para. 1 of Article 44, the lawmaker is using the phrase ‘competent body’, while not mentioning which are these competent bodies. The meaning of the competent body is provided in para. 15 of Article 3 and it has an all-inclusive nature for each stakeholder having a role to assume in the criminal justice for minors.

       

      1. Points 1 and 2 of Article 44 are using the phrase ‘informs the minor’ as an obligation for the competent bodies. The term ‘information’ implies making available any type of information pertaining to the legal basis regulating the restorative justice, to upgrading the awareness scale regarding the advantages and disadvantages of following or applying the restorative justice programs. This information should be made available in compliance with the definition contained in Article 3, para. 10, of CCJM, thus, implying any data which is appropriate and understandable for the age and maturity of the minor and which is provided for to make possible for them to assume their rights in full, unless making this information available would be against the best interest of the minor. Information encompasses also making information available on the public and private institutions and entities, non-profit organisations offering restorative justice programs and so on. Information as a legal term has been dealt with in Article 3 of Law No 119/2014 ‘On the right to information’[1] and in the Commentary of the law[2] associated in the practice of the Commissioner on the right to Information. A significant element is being dealt with in this provision, being the obligation of the public administration and private bodies to provide information. The public authority is obliged to inform the petitioner whether it is in possession of the required information. While Article 44 sanctions the obligation of the competent bodies for information, Article 34 of CCJM sanctions the right of the victim minor, their legal or procedural representative and defence lawyer to be informed immediately and during the entire process of the minor connected to: ... ë) available restorative justice programmes and their functioning (Article 34, par 2, letter ë).

       

      1. Regarding the phrase ‘restorative justice program’ being provided in para. 1 and 2 of Article 44, there may be stated that the restorative justice programs are programs being conducted and followed by the public bodies and private entities in the context of implementing the restorative justice measures. CCJM elaborates on the term ‘restorative justice measures’ thus, facilitating the understanding of the term ‘restorative justice program’ (para. 12, of Article 3 of CCJM). According to para. 12 of Article 3, it turns out that: “Restorative justice measure” is any measure allowing the child in conflict with the law to understand the responsibility and redress the consequences of a criminal offence, compensate damage and/or reconcile with the victim/injured party and other persons affected by the criminal offence, in which the child who has committed the criminal offence and the injured party participate jointly and actively to redress the consequences of a criminal offence, usually with the assistance of an independent third party. The restorative justice programs are set up due to the implementation of the governmental and non-governmental strategic projects or measures to support the integration and rehabilitation of minors having been accused of a criminal offence or minors being victims of criminal offences. These programs may start to become part of the criminal justice procedures for minors, however, they are in each single case conducted beyond the judicial or investigatory process with the wish and chosen by parties, or upon the proposal of the prosecutor or judge, or any other professional becoming aware of the conflict between the minor accused of the commission of the criminal offence and the victim. The venue, time and way of conducting this process is carried out in neutral premises wherefore the parties and/or justice authorities agree. The programmes of restorative justice upon starting to their completion have nothing to do with the judicial/investigation process[3].

       

      1. Restorative justice programs that assist in the implementation of restorative justice measures are aimed at diverting the minor being accused by the prosecution office and his punishment (Article 14, par 2, of CCJM).

       

      1. Article 44 is strongly connected to Article 63, par 3 and 4 of CCJM providing respectively that: restorative justice programme may foresee that the child be asked to: accept and show understanding of the liability for the criminal offence and the consequences on the victim; compensate the damage caused to the victim, community and/or society; ask forgiveness to the victim; and undertake actions acceptable by the victim or/and community. The restorative justice measures may include participation in a program of deviation and mediation, community work and / or any other program that leads to the rehabilitation of the consequences of a criminal offence committed by a minor (para. 4 and 5 of Article 63 of CCJM). Although the Article 44 is not a directly referral provision, it still refers indirectly and tacitly to Article 64, para 1 of CCJM and consequently (Article 64, para 1 of CCJM) in the Law no 10835, dated 24.2.2011 "On mediation in conflict resolution". This law has a comprehensive and extensive content regarding mediation while intertwining with mediation in criminal and juvenile affairs. More concretely: with the meaning of mediation (Article 1), the principles of mediation (Article 3), scope of application and the circle of disputes that may be mediated (Article 2). Article 2, para. 3, of the specific law also provides for the possibility of resolving conflicts of criminal offences by way of mediation, thus providing for: "3. Mediation in criminal matters shall be applied to disputes being examined by the court upon the request of the accused defendant or upon the complaint of the impaired party, Articles 59 and 284 of the Criminal Procedure Code, as well as in any other case where the specific law allows it.’ Law 10835/2011 provides also for licensing the mediators (Articles 4-8), tasks of mediator (Articles 9-10) and rules of mediation procedure (Articles 12-24).

       

      1. Article 44, in para. 2, contains the phrase ‘for the possibility to request’ before the court the restitution and compensation of damage. Constructing such a phrase, we can infer that the lawmaker has provided for the ‘possibility’ to seek compensation of the damage, since it is up to the accused or victim whether they shall actually give effect to that or they are not going to resort to it. The deviation of a minor accused of having committed a criminal offence toward a restorative justice program is not a compulsory process, but is entirely dependent on him. On the other hand, the consent of the accused is not enough, because any restorative justice program should be accepted by the victim of the offence. As the restorative justice program needs two consents to be expressed, the lawmaker calls this an opportunity. Freedom of consent exists if a clear internal will is built on the basis of a clear information and understanding of the process and effects (Article 3, par 10 of CCJM). It is crucial for the parties to be aware of how the restorative justice program will be carried out, by what nature the obligations and services are being carried out and by whom, for the possible consequences, of the conclusions and expected effects, such as success, failure or partial resolution. The obligation to provide information is incumbent on the criminal justice authorities. Each party should be informed separately, if necessary. Such information is indispensable for the parties to be able to exercise the right of consent. Voluntary participation is a prerequisite. Free consent must be given at the outset. The parties may withdraw their consent at any time. The criminal justice authorities and the mediator should make clear to the parties, respectively prior to and at the beginning of the proceedings. The legal protection measures should cover, in particular, the right to be informed, to express his / her views, to have a representative (parent or other), and an expedited procedure. The competent authorities undertake every step taking into account the child's best interest under the CCJM, Article 3 of the UN Convention on the Rights of the Child. The flawed consent, being granted or obtained under the circumstances of threat, fraud or any other way of physical or psychological violence, shall not be valid and renders restoration justice program invalid.

       

      1. The expression "refund and compensation of damages” provided for in point 2 of Article 44 implies some situations arising as a result of the failure of the restorative justice program. In such matters related to the caused damage, the claimant or the plaintiff may also be the victim and the accused. The victim may seek damages in cases where the restorative justice program is not successfully implemented, for example mediation and dispute resolution, the victim's situation is aggravated in terms of physical, mental, psychological stability because the accused has not reflected on the restoration of this condition, but has continued to act with malice and bad faith to harm them; or when staff working for the implementation of the restorative justice program specialized as mediator, negotiator, psychologist and others, has not properly carried out its tasks, has neglected and their actions have caused harm to the victim, and so on. The lawsuit for damages may be filed also by the defendant as long as he has, during the implementation of the restorative justice program, been infringed in his moral and physical integrity by retaliatory actions of the victim's family members, personality violations by third parties, the public, or by unprofessional actions of the staff involved in the implementation of the restorative justice program. Compensation for damage, from a legal point of view, is a right that is given effect to by way of a civil lawsuit in the criminal process, or even outside it, parallel to this process, or even after the criminal proceedings are over. This right to file a lawsuit for compensation for damages stems from Articles 608-609 of the Civil Code[4], Article 61 of the Criminal Procedure Code[5] which provides: “Civil lawsuit in criminal proceedings 1. One who has suffered injury by the criminal offence or his/her heirs may file a civil lawsuit in the criminal proceedings against the defendant or the person liable to pay damages, claiming the restitution of the property and reimbursement of the injury.”, and Articles 3, 4 and 6 of the Law no. 8510, "On extra-contractual liability of state administration”[6]

       

      1. The phrase "the implementation of the restorative justice program is not given effect" implies two situations: first, the case when the process does not start due to the subjective delays of the competent persons specialized in giving effect to the program or because of the lack of complete and proper information by the competent bodies regarding the restorative justice program, and, secondly, when the process begins to take place but fails on the road for reasons that depend on the parties or related persons.

       

      [1]http://www.arsimi.gov.al/files/userfiles/mdh/Ligji_per_mbrojtjen_e_te_dhenave_personale_9887_date_10_03_2008_i_ndryshuar.pdf

      [2]http://www.publeaks.al/wp-content/uploads/2016/11/komentar-FOI-me-praktiken-e-KDI-web.pdf

      [3] See Article 14 of the law no 10835/2011 “On mediation in resolving disputes". To be accessed under: http://www.drejtesia.gov.al/files/userfiles/Komisioni_i_licensimit/Ligji_nr_10385_dt_24.02.2011.pdf 

      [4] See the Civil Code of the Republic of Albania, approved by the law no 7850, dated 29.7.1994, as amended by law no  8536, dated 18.10.1999, published in the official journal no 29, November 1999, Law no 8781, dated 3.5.2001, published in the official journal no 24, dated 20 May 2001, Law no 17 / 2012, dated 16.2.2012, published in the official journal no 18, dated 14 March 2012, Law no 121/2013, dated 18.4.2013 was published in the official journal no 67, dated 3 May 2012, Law no 113/2016, dated 3.11.2016 was published in the official journal no 219, dated 15 November 2016. http://www.qbz.gov.al/botime/kodi%20civil%202016.pdf

      [5] See the Civil Procedure Code of the Republic of Albania, approved by the law no 7850, dated 21.3.1995, as amended by law no 7977, dated 26.7. 1995 , 8027, dated 15.11.1995, no 8180, dated 23.12.1996, no 8460, dated 11.2.1999, no 8570, dated 20.1. 2000, nr.8602, dated 10.4.2000, no 8813, dated 13.6. 2000 , nr.9085, dated 19.6.2000, no 9187, dated 12.2.2004, no 9276, dated 16.9.2004, no 9911, dated 5.5.2008, no 10 054, dated 29.12.2008, no 145 / 2013, dated 2.5.2013, no 21/2014, dated 10.3. 2000 , nr.99/2014, dated 31.7.2014, no 35/2017, dated 30.3.2017; http://www.qbz.gov.al/botime/Kodi%20i%20Procedures%20Penale%2028.07.2017.pdf

      [6] "Article 3. Instances of liability for state bodies 1. State administration bodies shall be liable for the damages they cause to natural or legal persons in the following cases: a) when performing unlawful acts or omissions; b) when conducting lawful acts or omissions, but which cause harm to the legitimate interests of private or legal persons; c) when, even though they carry out legitimate actions or omissions, they cause an unequal harm to the subjects to whom this act or omission is directed; ç) when, due to the malfunctioning of the technical means by which the bodies of state administration exercise their activity, natural or legal persons are violated in their legitimate interests ... " Article 4, point 2, provides for: ‘Legal liability of the employees of the state administration bodies. 2. The state administration bodies employees shall, by way of exception, be liable to the damages they have caused to the natural or legal private persons, as long as it is established that they have acted in bad faith’, and Article 6 provides for: ‘Redress. Redress consists in the payment of an amount of money to recover a harm which can not be recuperated directly’.

      1. It is the fist time in the Albanian legislation that such a regulation as that of Article 44 of CCJM is regulated at the Code level, thus setting out the procedural steps provided for in para. 1 and 2 of this Article. Specifically, CPC which was approved by the Law no 7905, dated 21.3.1995, amended by Law no 8460, dated 11.2.1999, by Law no 8813, dated 13.6.2002, by Law no 9085, dated 19.6.2003, by Law no 9276, dated 16.9.2004, by Law no 9911, dated 5.5.2008, by decision of Constitutional Court no 31, dated 17.5.2012, by Law no 145/2013, dated 2.5.2013, by Law no 35/2017 did not have a similar provision prior to the approval of CCJM.

       

      1. In other aspects that Article 44 relates to the restorative justice program that relates to mediation prior to the approval of the CCJM, they have been partially provided in Law no. 10385, dated 24.2.2011 "On mediation in conflict resolution"[1]. This law provides for in Article 2, para. 5 “5. In the case of disputes in the criminal field, when the criminal proceedings have been initiated, the court shall under any circumstances invite the parties to resolve by mediation the disputes provided for in paragraph 3 of this Article. Similarly, Article 14, para. 1, provided for the procedure of mediation in criminal proceedings and that 1. The court, in line with Articles 333 and 338 of the Code of Criminal Procedure shall invite the parties to settle through mediation the dispute which is subject to proceedings, foreseen in Article 2, para. 3 of this law and by setting a deadline to the parties in line with the nature of the dispute.

       

      1. Prior to Law no 10385, dated 24.2.2011, earlier in sequence, there was in force the Law no 9090, dated 26.6.2003 "On mediation in conflict resolution", containing provisions on the evaluation of mediation by the court or prosecution office. Article 2, para. 1 and 2, provided for: "1. Mediation, according to this law, applies to the resolution of all disputes in the field of civil, commercial, family and criminal law that are examined by the court at the request of the injured accuser or upon the appeal of the convicted person under Articles 59 and 284 of the Code of the Criminal Procedure. 2. Mediation, according to this law, shall be applied in cases when it is requested and accepted by the parties before or after the dispute has arisen, when required by law, and when required or considered by the court, arbitration or the relevant state organ under the law."

       

      1. Prior to the Law no 9090, dated 26.6.2003 "On mediation in conflict resolution"[2], there was in force the Law no 8465, dated 11.03.1999 "On mediation in settling the conflicts amicably" which in Article 13 provided that where the court or prosecution office deemed that the conflict might be resolved by way of mediation and the parties did not file any objection, they suspended the proceedings and sent it for examination to the mediator. Where the conflict was not resolved through mediation, the court/prosecution office re-initiated the proceedings upon the request of the parties.

       

      1. In Article 3 of Law no. 119/2014 "On the Right to Information”[3] prior to the approval of the CCJM for the part related to the right to information of juveniles involved in the juvenile justice system and for the obligation of the competent authorities to inform them "Information” is treated as a legal term along with the consequences of this information.

       

      [1] Link: http://www.ikub.al/LIGJE/903110038/Article-Per-ndermjetesimin-per-zgjidhjen-me-pajtim-te-mosmarreveshjeve-.aspx

      [2] http://www.pp.gov.al/web/ligj_per_ndermjetesimin_37.pdf

      [3]http://www.arsimi.gov.al/files/userfiles/mdh/Ligji_per_mbrojtjen_e_te_dhenave_personale_9887_date_10_03_2008_i_ndryshuar.pdf

      1. UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985), provides: "Restitution 8. Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights."

       

      1. Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters 2002/12[1], is an important document facilitating the clarification of terms pertaining the restorative justice.

       

      1. Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (2005),

       

      1. Recommendation (2008)11 of the Committee of Ministers of the Council of Europe regarding the rules connected to the punishment or other measures for accused minors[2]. Recommendation CM/Rec(2008)11 of the Committee of Ministers to member states on the European Rules for juvenile offenders subject to sanctions or measures provides for: "12. Mediation or other restorative measures shall be encouraged at all stages of dealing with juveniles...”.

       

      1. Recommendation no (99) 19 of the Committee of Ministers of CE for the member countries is connected to mediation[3] in criminal cases and the respective explanatory reports. Commentary on the preamble of the Recommendationn. Recommendation No R(99)19 adopted by the Committee of Ministers of the Council of Europe on 15 September 1999 and explanatory memorandum.

       

      1. European Convention on the Exercise of the rights of Children, Law No 10 425, dated 2.6.2011 “ON THE RATIFICATION OF THE CONVENTION OF THE COUNCIL OF EUROPE ‘ON THE EXERCISE OF THE RIGHTS OF CHILDREN’ in its Article 13 requires the contracting parties to take measures for encouraging the institutionalisation and the use of the mediation procedures. “Article 13: Mediation or other processes to resolve disputes. In order to prevent or resolve disputes or to avoid proceedings before a judicial authority affecting children, parties shall encourage the provision of mediation or other processes to resolve disputes and the use of such processes to reach agreement in appropriate cases to be determined by Parties.”

       

      1. Recommendation no R (87) 20 on social responses to juveniles charged with committing criminal offenses calls upon member states governments to review their legislation and practice in order to encourage and develop avoidance and mediation procedures.

       

      1. RECOMMENDATION No. R (87) 20 OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON SOCIAL REACTIONS TO JUVENILE DELINQUENCY[4] provides: "II. Diversion - mediation 2. to encouraging the development of diversion and mediation procedures at public prosecutor level (discontinuation of proceedings) or at police level, in countries where the police has prosecuting functions, in order to prevent minors from entering into the criminal justice system and suffering the ensuing consequences; to associating Child Protection Boards or services to the application of these procedures; 3. to taking the necessary measures to ensure that in such procedures: - the consent of the minor to the measures on which the diversion is conditional and, if necessary, the cooperation of his family are secured; - appropriate attention is paid to the rights and interests of the minor as well as to those of the victim"

       

      1. Recommendation no R (87) 21 on victim assistance and prevention of victimization[5] recommends that member states encourage mediation practices between perpetrators and victims. RECOMMENDATION No. R (87) 21 OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON ASSISTANCE TO VICTIMS AND THE PREVENTION OF VICTIMISATION provides: "4. Ensure that victims and their families, especially those who are most vulnerable, receive in particular: ... 17. encourage experiments (whether on a national or local basis) in mediation between the offender and his victim and evaluate the results with particular reference to how far the interests of the victim are served".

       

      1. RECOMMENDATION NO R (87) 21 OF THE COMMISSION OF MINISTERS IN THE MEMBER STATES FOR VICTIM ASSISTANCE AND THE PREVENTION OF VICTIMIZATION provides: "4. Ensure that victims and their families, especially those most vulnerable, receive in in particular: ... 17. Encouraging experiments (whether on a national or local basis) to mediate between the offender and his victim and to evaluate the results with a particular reference to the extent to which the victim's interests are served”.

       

      [1] http://srsg.violenceagainstchildren.org/sites/default/files/documents/UN%20Resolutions/ECOSOC%20 resolution%202002-12.pdf

      [2] Linku: https://www.unicef.org/tdad/councilofeuropejjrec08(1).pdf

      [3] Link: http://www.mediacio.hu/files/EU_dok/CoE_R(99)19_mediation.pdf"

      [4] Linku: http://archivio.transnazionalita.isfol.it/file/CoE_Rec_R87-20%20Eng.pdf. 

      [5] Linku: http://www.barobirlik.org.tr/dosyalar/duyurular/hsykkanunteklifi/recR(87)21e.pdf

  • Reports, opinions, recommendations and declarations

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

     

    1. JUSTICE GUIDANCE DOCUMENT has interpreted Article 12 of the Directive 2012/29 as follows: "ARTICLE 12 — RIGHT TO SAFEGUARDS IN THE CONTEXT OF RESTORATIVE JUSTICE SERVICES (Recital 46). This Article is partially covered by Article 10 FD, but the definitions of various safeguards are new. Restorative justice services encompass a range of services, whether attached to, running prior to, in parallel with or after criminal proceedings (pre-trial and post-trial). They may be available in relation to certain types of crime or only in relation to adult or child offenders and include for example victim-offender mediation, family group conferencing and sentencing circles.

     

    1. CHILDREN AND JUVENILE JUSTICE: PROPOSALS FOR IMPROVEMENTS.[2] Many states now provide a range of community sanctions for young offenders. For example, in Germany alternative sanctions, including mediation between victims and offenders, exist in all Länders. In Belgium the courts can order children to be placed under the supervision of the social services (with educational conditions attached), or children can be placed with a reliable person in a foster home or put under supervision for observation and educational purposes. Greater use is also being made of mediation and family conferencing in Belgium. Bosnia and Herzegovina has introduced a new restorative justice option which uses a mediation procedure incorporating a personal apology, compensation and community volunteering. Against a backdrop of increasing rates of juvenile imprisonment, welfare approaches involving the social services and restorative justice/family conferencing approaches are also part of the response in the Netherlands. Irish law likewise provides for a range of responses (including parental supervision orders, mentoring orders and residential, intensive supervision and education and training orders) that aim to keep children out of prison. (page 12)

     

    1. International Scientific and Professional Advisory Council (ISPAC) of the United Nations Crime Prevention and Criminal Justice Programme[3]. "Topic 4 of the substantive topics to be included in the proposed provisional agenda of the Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders is "Offenders and victims: accountability and fairness in the justice process". This topic is of importance and consistent with the emphasis on victims and restorative justice in previously published United Nations documents including: 1) Guiding Principles for Crime Prevention and Criminal Justice in the Context of Development of the New International Economic Order, Principle 28 which calls for exploration and encouragement of such alternatives to purely judicial interventions as mediation, arbitration and conciliation courts.

     

    Decisions of the European Court of Human Rights 

    1. Case Lambert and others versus France, 25.06.2015[4]. "161. The Court notes that French law as it currently stands provides for the family to be consulted (and not for it to participate in taking the decision) but does not make provision for mediation in the event of disagreement between family members. Likewise, it does not specify the order in which family members’ views should be taken into account, unlike in some other countries."

     

    1. Neshkov and Others against Bulgaria - 36925/10 et al. Decision 27.1.2015[5]. The case concerned the conditions in serving prison sentences in some penitentiary institutions in Bulgaria. The applicants alleged a violation of Article 3 of the Convention and the first applicant (Z. Neshkkov) also alleged infringement of Article 13 due to the lack of effective internal protection. The Court has previously reviewed the terms of serving the sentence in Bulgaria under Article 3 in more than 20 other cases. For its part, the Committee of Ministers of the Council of Europe had repeatedly stressed the need for additional measures to bring the conditions for serving the sentence in the institutions of serving the punishment of Bulgaria in accordance with the standards of the Convention. ECHR highlights that: Sentencing and the role of prosecutors and judges "... 19. Prosecutors and judges should be involved in the process of devising penal policies in relation to prison overcrowding and prison population inflation, with a view to engaging their support and to avoiding counterproductive sentencing practices....90. In terms of steps that could be taken to reduce the number of persons being sent to prison, ... prosecutors could be empowered to resort to alternatives to prosecution, such as formal warnings, mediation and reparation programmes or community work, early in the criminal process, but with appropriate monitoring to reduce the risk of corruption. In 2013, there had been 22,029 persons placed in pre-trial detention, spending an average of forty-one days in custody. This suggested that pre-trial detention was routinely being imposed in respect of certain charges, and that alternatives to pre-trial detention could be used to result the number of people in custody. " 70.2. If mediation seems appropriate this should be tried first." "15. In providing for community sanctions and measures which could be used instead of deprivation of liberty, consideration should be given to the following: ...–victim-offender mediation/victim compensation", "20. Rationales for sentencing should be set by the legislator or other competent authorities, with a view to, inter alia, reducing the use of imprisonment, expanding the use of community sanctions and measures, and to using measures of diversion such as mediation or the compensation of the victim."

     

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

    [2] Linku: https://rm.coe.int/16806daa31

    [3] https://www.restorativejustice.org.uk/sites/default/files/resources/files/UN%20report.pdf

    [4] Linku: http://hudoc.echr.coe.int/eng#ë"itemid":("001-155352"]}

    [5] Link: http://hudoc.echr.coe.int/eng#ë"fulltext":ë"ECHR decision of 27.1.2015"],

    1. Analysis of Justice System in Albania, June 2015, drafted by the Senior Experts Group at the Ad Hoc Parliamentary Committee for Justice System,[1]

     

    1. The explanatory memorandum to the law ‘On judicial fees and expenditure in the Republic of Albania’ explained: "At the same time, an expected impact is the increase of the revenues out of the services offered by the court as well as the promotion of the solution of the judicial conflicts through the alternative forms such as the mediation or arbitration."[2]

     

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

    [2]https://www.parlament.al/wp-content/uploads/2017/01/RELACION-TARIFAT-DHE-SHPENZIMET-GJYQESORE.pdf 

    1. Law no 10385, dated 24.2.2011 "On mediation in dispute resolution”, which in Articles 14, 23, para 1 and 2 provides for the procedure of mediation in criminal proceedings.

     

    1. Law no 8331, dated 21.4.1998 “On enforcement of the criminal decisions” in Article 9 and in Article 31/9 and the Law no 10024, dated 27.11.2008, “On some amendments and addenda to the Law no 8331, dated 21.4.1998 "On enforcement of the criminal decisions"[1] provide for that the prosecutor is bound to take all the measures for enforcing the decision in line with the orders of the court and to verify the appropriateness of enforcement of the decision. Thus, where the court decides to suspend the custodial decision and replace it with an alternative sentence, it sends the decision immediately to the prosecutor. The prosecutor cooperates with the Probation Service, which later has, based on the recent amendments of the criminal legislation, been set up as the state body tasked with supervising the implementation of the alternative sentences. The Probation Service submits information and reports to the prosecutor and the court and assists in enforcing the alternative sentences. At the same time, it is tasked with assisting the convicted person in surpassing the difficulties for the social reintegration. 

     

    1. Ligji Nr. 111/2017 "Për ndihmën juridike të garantuar nga shteti", parashikon në nenin 11, germa ‘c’ se viktima e mitur dhe të miturve në konflikt me ligjin, në çdo fazë të procedimit penal, u ofrohet ndihma juridike pavarësisht të ardhurave dhe pasurisë.

     

    [1] http://www.pp.gov.al/web/ligji_per_ezekutimin_e_vendimeve_penale_i_perditesuar_1035.pdf

  • “Regulation on the cooperation of probation service with NGOs and the Mediation Service’, no 302, Dated 25.03.2009.[1]

     

    [1]http://www.ikub.al/LIGJE_CATEGORY/SHeRBIMIT-Te-PROVeS-ME-OJF-te-DH.aspx

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  • Nils Christy " Crime Control as Industry", 1993

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    Gerry Johnstone Restorative Justice: Ideas, Values, Debates, 2002 https://books.google.al/books?hl=en&lr=&id=XGSpAgAAQBAJ&oi=fnd&pg=PP1&dq=Restorative+Justice:+Ideas,+Values,+Debates

    Abramson, B. (2000) Juvenile Justice: The ‘Unwanted Child’ of State Responsibilities. An Analysis of the Concluding Observations of the UN Committee on the Rights of the Child, in Regard to Juvenile Justice from 1993 to 2000. International Network on Juvenile Justice/Defence for Children International . Available at ww.defence-for-children.org 

    Amnesty International (1998) Betraying the Young: Children in the US Justice System. AI Index AMR 51/60/98. Available at: www.web.amnesty.org 

    Asquith, S. (1996) Juvenile Justice and Juvenile Delinquency in Central and Eastern Europe. University of Glasgow, Centre for the Child and Society . Available at: www.eurochild.gla.ac.uk 

    Bailleau, F. (1998) ‘A Crisis of Youth or of Juridical Response?’, in V. Ruggiero , N. South and I. Taylor (eds) The Neë European Criminology, pp.95-103. London: Routledge.  http://journals.sagepub.com/doi/abs/10.1177/1362480605048942

    Bala, N. , J. Hornick , H. Snyder and J. Paetsch (eds) (2002) Juvenile Justice Systems: An International Comparison of Problems and Solutions. Toronto: Thompson.

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    Beck, U. (2000) What Is Globalisation? Cambridge: Polity.

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    Blagg, H. (1997) ‘A Just Measure of Shame? Aboriginal Youth and Conferencing in Australia’ , British Journal of Criminology 37(4): 481-501.

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    Buckland, G. and A. Stevens (2001) Review of Effective Practice with Young Offenders in Mainland Europe, 157-163. London: Youth Justice Board/European Institute of Social Services.

    http://journals.sagepub.com/doi/abs/10.1177/1362480605048942 

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    Children’s Rights Alliance (2002) State of Children’s Rights in England. London: CRA for England.  https://www.childrenincrisis.org

    Christie, N. (2000) Crime Control as Industry. London: Routledge.  https://scholar.google.com

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    Council of Europe (2000) European Sourcebook of Crime and Criminal Justice Statistics. Strasbourg: Council of Europe. 

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    Crawford, A. (2002) ‘The Governance of Crime and Insecurity in an Anxious Age: The Trans-European and the Local’, in A. Crawford (ed.) Crime and Insecurity: The Governance of Safety in Europe, pp. 27-51.Cullompton: Willan.  https://scholar.google.com

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    Fionda, J. (1998) ‘The Age of Innocence? The Concept of Childhood in the Punishment of Young Offenders’ , Child and Family Laë Quarterly 10(1): 77-87 http://eprints.kingston.ac.uk/12371/ 

    Freeman, M. (2002) ‘Children’s Rights Ten Years after Ratification’, in B. Franklin (ed.) The Neë Handbook of Children’s Rights, pp. 97-118. London: Routledge

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    Goldson, B. (2000) ‘Children in Need or Young Offenders?’ . Child and Family Social Work 5(3): 255-265 http://onlinelibrary.wiley.com/doi/10.1046/j.1365-2206.2000.00161.x/abstract

    Harris-Short, S. (2003) ‘International Human Rights Law: Imperialist, Inept and Ineffective? Cultural Relativism and the UN Convention on the Rights of the Child’ , Human Rights Quarterly 25(1): 130-181 https://muse.jhu.edu/article/38764/summary

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    Justice (2004) Restorative Justice: The Ëay Ahead. London: Justice . http://journals.sagepub.com

    Kempf-Leonard, K. and E. Peterson (2000) ‘Expanding Realms of the Neë Penology: The Advent of Actuarial Justice for Juveniles’ , Punishment and Society 2(1): 66-97. 

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    Komen, M. (2002) ‘Dangerous Children: Juvenile Delinquency and Judicial Intervention in the Netherlands, 1960-1995’ , Crime, Laë and Social Change 37: 379-401. https://link.springer.com/article/10.1023/A:1016011826864

    Kuure, T. (2002) ‘Loë Custody in Finland’ , paper given at the Children Law UK/NACRO Conference, ‘Reducing Custodial Sentencing for Young Offenders: The European Experience’, London, 23 October.

    https://books.google.al/books?id=hr8bmUVxasëC&pg=PA329&lpg=PA329&dq=Kuure

    Mears, D. (2002) ‘Sentencing Guidelines and the Transformation of Juvenile Justice in the 21st Century’ , Journal of Contemporary Criminal Justice 18(1): 6-19. 

    http://journals.sagepub.com/author/Alberola%2C+Cristina+Rechea

    Rechea Alberola, C. and E. Fernandez Molina (2003) ‘Juvenile Justice in Spain: Past and Present’ , Journal of Contemporary Criminal Justice, 19(4): 384-412 

    http://journals.sagepub.com/doi/abs/10.1177/1043986203258804

    Schaffner, L. (2002) ‘An Age of Reason: Paradoxes in the US Legal Construction of Adulthood’ , International Journal of Children’s Rights 10: 201-232.

    https://www.researchgate.net/publication/An_age_of_reason

    Scraton, P. and D. Haydon (2002) ‘Challenging the Criminalisation of Children and Young People: Securing a Rights Based Agenda’, in J. Muncie , G. Hughes and E. McLaughlin (eds) Youth Justice: Critical Readings, pp.311-328. London: Sage Publications. 

     http://journals.sagepub.com/doi/abs/10.1177/1362480605048942

    MANUAL PËR PUNONJËSIN E SHËRBIMIT TË PROVËS, OSCE Linku: http://www.osce.org/albania/80121?doënload=true

    Manual SHËRBIMI I NDËRMJETËSIMIT DHE DREJTËSIA RESTAURUESE PËR TË MITURIT NË KONFLIKT ME LIGJIN Për procedurat e ndërmjetësimit përmes gjykatës Linku: https://albania.savethechildren.net/sites/albania.savethechildren.net/files/library/Gjykata_rev_11.pdf

    STRATEGJIA NDËRSEKTORIALE E PARANDALIMIT, LUFTËS KUNDËR KORRUPSIONIT E QEVERISJES TRANSPARENTE, 2008 - 2013 parashikon nevojen për trainimin dhe kualifikimin e grupit te mediatoreve qe do te merren me ndermjetesimin ne çeshtjet penale, civile, familjare dhe administrative. Linku: http://shtetiweb.org/wp-content/uploads/2014/05/strategji_lufta-kunder-korrupcionit_2008_diaca.pdf

  • Laws 

    Law no. 9090, dated 26.6.2003 "On Mediation in Dispute Settlement",[1] had a similar provision to Article 64 of the CCJM. This was Article 17, providing for a 45-day period for the mediation procedure, where the case was sent by the court or prosecution office. Where the conflict was settled by way of mediation, the judicial bodies and the prosecutorial bodies decide the termination of the civil or criminal proceedings or rejecting the initiation of the criminal proceedings, while making the respective entries in the registers. 

    Law no. 8465, dated 11.03.1999, “On mediation in settling the conflicts"[2] which in Article 13 provided that where the court or prosecution office deemed that the conflict might be resolved by way of mediation and the parties did not file any objection, they suspended the proceedings and sent it for examination to the mediator. Where the conflict was not resolved through mediation, the court/prosecution office re-initiated the proceedings upon the request of the parties. 

    CPC approved by law No 7905, Dated 21.3.1995, amended by law no 8813, dated 13.6.2002[3], by law no 10 054, dated 29.12. 2008[4], by law 145/2013, [5], by law 35/2017[6], in Article 59, for the accusing victim provides for that the one being aggrieved from the criminal offences provided for in Articles 90, 91, 92, 112 first paragraph, 119,119/b, 120, 121, 122, 125, 127, 148, 149 and 254 of the Criminal Code, is entitled to submit a request at the court and attend the proceedings as a party to establish the charge and to seek the damages. The prosecutor attends the adjudication of these cases and, as appropriate, requests the conviction of the defendant or his acquittal. If the accusing impaired party or the defence lawyer appointed by him do not appear in the hearing while not submitting any reasonable grounds, the court shall decide the termination of the proceedings. At the same time, CPC in its Article 284, para. 5, provides for the cases provided for in Article 59 where the complaint before the court shall be lodged by the accusing impaired party.

     

    [1]  http://www.pp.gov.al/web/ligj_per_ndermjetesimin_37.pdf

    [2]http://www.ikub.al/LIGJE/903110038/Article-Per-ndermjetesimin-per-zgjidhjen-me-pajtim-te-mosmarreveshjeve-.aspx

    [3] http://www.qbz.gov.al/botime/fletore_zyrtare/2002/PDF-2002/77-2002.pdf

    [4] http://www.qbz.gov.al/botime/fletore_zyrtare/2008/PDF-2008/205-2008.pdf,

    [5] http://www.qbz.gov.al/botime/fletore_zyrtare/2013/PDF-2013/83-2013.pdf,

    [6] https://www.parlament.al/ëp-content/uploads/2017/04/ligj-nr.-35-dt.-30.3.2017.pdf

Marjana Semini
Arta Mandro, Koraljka Bumči