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

Article 47: Individual assessment report

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1. The prosecutor/court in the process of individual assessment shall rely on the level of development, living conditions, upbringing and development, education, health status, family situation and other circumstances of the child which allow an assessment of the characteristics of personality of the child, behaviour and needs of the child, including even the special needs.

2. The individual characteristics of the child foreseen in Article 22 of this Code shall be reflected in the individual assessment report.

3. An individual assessment report describes the special needs of a child, risk of committing a criminal offence and other elements depending on the case, as well as the proper measures recommended to facilitate development and integration of the child into society.

4. The prosecutor/court shall request as mandatory the preparation and consideration of the individual assessment report when:

a. the alternative measure of diversion is imposed;

b. the type of punishment is set;

c. the sentence decision is executed; as well as

ç. the request for conditional release is examined.

5. The prosecutor/court must observe that the time limit of preparation of the report does not preclude the progress and time limit of the concrete criminal case.

6. In the stages foreseen in letter “a” and “b” paragraph 4 of this article, the individual assessment report is prepared by the expert/group of experts or the Probation Service according to the provisions of article 22 of this Code. In the cases foreseen in letter “c” and “ç” paragraph 4 of this article, this report is prepared by the Juvenile Institution of Execution of Criminal Sentences (JIECS) and/or Probation service. Where appropriate, the above-mentioned bodies take the opinion of the Unit for Protection of the rights of the child when preparing the individual assessment report.

7. During the preparation of the individual assessment of the child, the expert or the group of experts, representative of the Probation Service, Institution of Execution of Criminal Sentences or where appropriate the Unit for Protection of the rights of the child shall meet, freely, the child defendant and obtain the necessary information from any natural or/and legal person, public and/or private considered to be a facilitator in this process.

8. The individual assessment report shall be taken into account at any stage of criminal proceedings. When preparing an individual assessment report in each subsequent stage of criminal proceedings, information contained in a previous individual assessment report shall be taken into account.

9. The methodology, rules and standards for the preparation of the individual assessment report foreseen by this article shall be determined according to the legislation in the respective areas.

Table of Content

      1. Article 47 of the CCJC intends to specify the rules of the process of individual assessment of the child by carefully stipulating a set of conditions and premises upon which the court and the prosecution office shall rely to conclude on the identification of the child’s personality and determination of his needs. It focuses in the technical elements of formatting the individual assessment report, aiming to discipline its content by giving in detail the model required to the institutions that prepare this important document. On the other side, this article facilitates the judiciary by determining the cases when the individual assessment report is necessary to be prepared, but also to be taken into consideration. Likewise, the lawmaker shall also specify to the prosecutor and the judge the reasons and circumstances when to take into consideration the individual assessment report.

       

      1. One of the aims of Article 47 is to determine the procedural steps to be followed when conducting an individual assessment of the child and the way of coordinating the work of the competent institutions. This article also reveals the importance of the individual assessment report as a document considered at various stages of the criminal justice process for children.

       

      1. In general, Article 47 aims to be comprehensive in relation to the subjects and method of preparation of the individual assessment report. It is important to remember that every assessment should be focused on outcomes for the child.
      1. Article 47 is organized with a structure with nine paragraphs. In each of them, in a declarative and descriptive language, important rules are stipulated relating the preparation and consideration of the individual assessment report of children in the process of criminal justice.

       

      1. Article 47, after initiating with the role of the court and the prosecution office in the process of individual assessment of children, analyzes one after the other all the premises to be taken into consideration in this assessment, such as the conditions and the lifestyle, age, personality, conditions of development, education, health status, family environment where the child was raised, and so on.

       

      1. Individual assessment report can be structured into three groups: the first group consists of the rules of a procedural nature; the second group consists of the rules that affect the principles of criminal justice for children and the third group consists of the reference rules.
      1. Article 47 in paragraph 1 lists several points that assist the court and the prosecution office to assess the characteristics and personality of the child by making the right balance between his behaviour and the needs of a general or particular character of the child.

       

      1. With the expression “shall rely on the level of development” used in paragraph 1 of Article 47 we will understand that the prosecutor office/court in the process of assessment of the child relies on the level of development. The cognitive development means the development of the general intellect, but at the same time the development of perception, concentration, memory, development of speech and thought from simple to abstract concepts. Emotional development, means the development of the totality of emotions towards oneself and others. Social development involves recognizing ways of behavior that enable us to enter society with others and regulate and adapt the life of the individual to the community. Human development of an individual is a consequence of the mutual action between the biological maturity and the acquired experience through learning.

       

      1. With the expression “characteristics of the personality of the minor, his behavior and his needs an assessment of the characteristics of personality of the child, behaviour and needs of the child” used in paragraph 1 of Article 47 we shall understand that the prosecutor office/court in the assessment process of the child relies on the characteristics of the child’s personality, his behavior and needs. Personality may be defined as an organized and dynamic set of characteristics of a person. All psychic processes, such as: perception, thinking, feelings, learning, motives, etc. are closely related, so they depend on each other and affect one another. The individual, through these psychic processes, during different periods of life, forms certain personal features. By observing these features during an individual’s activity, it is revealed the special way of behaviours, which is characteristic of him. “Behaviour” may be defined as the way a child acts in life, in society, in school etc.; his attitude in relation to others or against duties and under certain circumstances. “Need” may be defined as something that is necessary to meet the requirements of daily or social life, something indispensable, without which one cannot cope with life; something that is needed for the life of the child, or lack of something that creates a difficult situation for a child so that he/she seeks the help of someone or something; what drives the child to act in a certain direction, including any harm child is suffering or is likely to suffer, capacity of parent to meet his/her child’s needs as well as the impact of wider family of child. Thus, the individual assessment report aims at giving an individual’s description, such as: development, personality characteristics, elements of his/her behavior and his/her specific needs.

       

      1. With the phrase “special needs” used in paragraphs 1 and 3 of Article 47 we shall understand that certain individuals have special needs as a consequence of individual characteristics or random specifics addressed by justice. With a special need we understand a need that is characteristic only of that child, the one that relates only to the one and that distinguishes him/her from the others. Such may be necessities related to children who have different abilities, whether in the form of the need for specialized medical and technical support services, for children who have difficulty or inability to watch, listen, in the process of motor movements, in the process of performing permanent health therapies, for example periodic blood transfusions, and the like. In addition, special needs may also include the needs that children have in the form of gifts or tendencies of artistic, sports, scientific or other character, which are part of their daily or occasional activity. The special needs may refer to the child non-education, for example no ability to write or read due to the lack of education.

       

      1. In paragraph 2 of Article 47, a referral system is pursued within the CCJC in Article 22. This Article in paragraph 2 deals with the individual characteristics of the child related to the explanation provided by Article 47 in paragraph 2 regarding the individual characteristics of the child and the way of assessment and consideration by the court and the prosecution office. For this reason, Article 47, paragraph 2 should be perceived in conjuction with Article 22, paragraph 2 and 3 thereof. In paragraph 3 of Article 47, it is used the expression “proper measures recommended to facilitate development and integration of the child into society. Report should serve as a suggestion or the establishment of supporting strategies to promote the further social and personal development of the child. The needs for various psychological, educational, medical treatments and therapies are evidenced and the increase of the personal capacity of the child. In addition, an individual report should clearly reflect programs of an educational character or other suitable types for the case and that may be found in the area, the city, the place where the child lives. It is important to remember that children in conflict with law should be treated as children in difficult circumstances and the approach of the recommended measures should aim at addressing the vulnerabilities of children and ensuring their rehabilitation. Rehabilitation of young offenders should be a priority in criminal justice system, while effective reintegration and appropriate aftercare are considered crucial in reducing recidivism. Therefore, proper measures should be seen also as an individualized rehabilitation program which is considered as a key instrument for promoting reintegration of children involved in the criminal circuit.

       

      1. Paragraph 4 of Article 47 lists the four reasons why the prosecutor or the court should formally seek the preparation and taking into consideration the individual assessment report. The individual assessment report of the child is seen as necessary in all cases when the court or prosecution office have to determine the alternative measure of avoidance or the type of sentence because, depending on the individual characteristics of the child, his social riskiness, the possibility for the child to be rehabilitated, it shall be determined his avoidance of criminal prosecution, the imposition of an alternative non-custodial sentence or the imposition of child’s deprivation of liberty. Depending on that the court or the prosecution office will decide on how to establish and execute the sentence or decide whether to accept the request for conditional release or not.

       

      1. Paragraph 4 should be read in conjunction with paragraph 6 of Article 47 which specifies that in case of determining the alternative measure of avoidance or type of sentence, the individual assessment report is prepared by the expert/group of experts or the Probation Service. In addition, paragraph 6 of Article 47 sanctions that in the case of determining the manner of execution of the sentence or if it is decided on the conditional release, the individual assessment report shall be made by Juvenile Institution of Execution of Criminal Sentences (JIECS) and/or Probation Service, again according to the rules determined in Article 22, paragraph 2 of the CCJC. It is worth mentioning that in both situations, opinion is taken by the Unit for Protection of the rights of the child. The lawmaker uses the phrase “where appropriate” to imply that the opinion of the Unit for Protection of the rights of the child is not mandatory, but is assessed case by case by the court, the prosecution office or by the institutions and experts who prepare the report.

       

      1. Paragraph 5 of Article 47 sanctions the principle that the justice process for children should be as fast and efficient as justice in particular for children should not be delayed. The prosecution office or the court are charged with making sure that the deadline for the preparation of the report does not become an obstacle to the progress and deadlines of the specific criminal case. Morover, having in mind that rehabilitation is the first goal of the juvenile justice, report prepared in due time with profession approach is of high importance. This task may be fulfilled by these institutions by setting deadlines for the bodies that have the task of preparing individual assessment reports.

       

      1. In paragraph 7 of Article 7, it is used the expression “shall meet, freely, the child defendant” which means that the drafting of the individual report is made without limiting oneself or the child, without being constrained by others, with free will, without barrier; without fear, freely and independently. For this, a compromise is made in favor of the child’s interest, for example, the determination of the environment, schedule, meeting frequency, etc. without affecting the quality and veracity of the report.

       

      1. Paragraph 9 of Article 47 follows another reference line. Thus, the content of Article 47 relates to the process of individual assessment of the child provided in other specific laws. This paragraph does not list their laws and articles expressly, but it implies them. Given the analysis of the laws dealing with cases and rules for the preparation of the individual report of the child, we can mention that paragraph 9 of Article 47 should be implemented closely related to:

       

      1. Article 31/8 of Law No. 8331, dated 21.4.1998 (Amended by law no. 10024, dated 27.11.2008) On the Execution of Criminal Decisions. According to this article entitled “Report of Probation Service prior to taking the decision”, it is underlined “Probation service, at request of the prosecutor, submits a report for evaluation of social circumstances in order to help in decision-making during the preliminary investigation stage. The report should contain information and data regarding the personality of the law breaker, previous employment, his behaviour and educational background and the factors which influence or might influence his behaviour in order to help the court to make the proper evaluation of alternative sentence. The report based on facts, should be impartial and objective, and it should be sent within the period determined by the court. The report should contain even the recommendation of probation service for the proper alternative sentence for the person aiming at reintegration in society and prevention of commission of other criminal acts”;
      2. Articles 10, 11, 11/3 and 32 of the Law No. 8328, dated 16.4.1998 On the Rights and Treatment of Prisoners and Pre-Trial Detainees[1], wich in Article 10 provides: “Individualization of treatment”: Treatment of pre-trial detainees and prisoners should be made according to the individualization criteria in conformity with the individual situation and characteristics of each convict. Individualization of treatment is made by assessing the individual psychological and social needs, age, gender, health, sexual orientation or gender identity, cultural and economic situation, the environment where the pre-trial detainee or convict had lived, risk factors and motivation to engage in activities organized at the institution. Observation is made at the beginning of the treatment and its results are verified continuously during the execution, making appropriate adjustments in cooperation with the convict.” Article 11/3 provides: “An individual rehabilitation and reintegration plan is prepared for each pre-trial detained or convicted child that takes into consideration his education, psychological assessment, emotional situation, desires and his/her abilities to pursue professional courses or to advance in education.” Article 32 provides “Treatment”: The treatment of pre-trial detainees and convicts is made by providing appropriate facilities and tools, and in conformity with their personality data. The objectives of the psycho-social treatment aim at the development of individual skills and habits to reintegrate into society through the involvement of pre-trial detainees and prisoners in the programs of education, vocational training, employment, cultural and sports activities, psychological and social consultation.”;
      3. Article 46 of the Law No. 18/2017 On the rights and Protection of the Child, which provides: “Municipalities are responsible for the establishment of the respective child protection structures at municipality and at administrative unit level under their subordination, in implementing standards, and, through these, an integrated system of protection of the child, by ensuring, inter alia: ... e) application of the procedure for case management of children in need of protection, as well as for establishment and coordination of the system of referral, reporting, protection and follow-up of cases of children in need of protection, through its structures...”;
      4. Article 4, paragraph 33 of the Law No. 40/2016 dated 14.4.2016 “On the Order of the Psychologist in the Republic of Albania” which provides: “Biopsychological assessment” is a process of assessment of various and interdependent factors that harm the ability of an individual to carry out daily life activities and to participate in society on equal terms with others. These factors are: body structure, bodily and psychological functions, and personal, social, economic and cultural factors.”.

       

      [1] Amended by law no. 8758, dated 26.3.2001 published in the OB no.15; Amended by law no. 9071, dated 22.5.2003 published in the OB no. 53; Amended by law no. 9888, dated 10.3.2008 published in the OB no. 44; Amended by law no. 10 087, dated 26.2.2009 published in the OB no. 32; Amended by law no. 40/2014, dated 17.4.2014, published in the OB no. 67.

      1. Before the CCJC, elements related to the report of the expert were determined in Article 332 of the Criminal Procedure Code of the Republic of Albania approved by Law no.7905, dated 21.3.1995 amended[1] which provides: “1. The following are attached to the request of the prosecutor for the trial of the case: ... ë) written reports of experts;”.

       

      1. Before the CCJC, Article 31/8 of the Law no. 8331, dated 21.4.1998 (Amended by Law No. 10024, dated 27.11.2008) “On the execution of criminal decisions” Before the CCJC, Articles 10, 11, 11/3 and 32 of the Law no. 8328, dated 16.4.1998 On the rights and treatment of prisoners and pre-trial detainees[2]

       

      1. Before the CCJC, Articles 31 -35 of the Decision no. 302, dated 25.3.2009 “On the approval of the regulation “On the organisation and functioning of the probation service and the standards and procedures of supervising the execution of alternative sentences” provide the obligation of the Probation Service to draft and submit the report, upon the request of the prosecutor or the court.

       

      1. Before the CCJC, paragraph 3 of the General Regulation of Prisons provided the manner of preparing a report on the assessment of the convict’s behaviour: 3. “....The assessment reports include compliance with legal requirements, assessment of convict’s behavior, risk evaluation, participation in rehabilitation and reintegration programs or other programs within the institution, the credibility of the convict for his return to the institution, the existence or not of disciplinary measures, the relationship with the family, and any other aspect related to the profile of the convict.”

       

      [1] Amended by laws: 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, no.8602, dated 10.4.2000, no. 8813, dated 13.6.2002, no.9085, dated 19.6.2003, 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 10.3.2014, no. 99/2014, dated 31.7.2014, no. 35/2017, dated 30.3.2017; decisions of the Constitutional Court no. 55, dated 21.11.1997, no. 15, dated 17.4.2003 and no. 31, dated 17.5.2012

      [2] Amended by law no. 8758, dated 26.3.2001 published in OB no.15; Amended by law no. 9071, dated 22.5.2003 published in the OB no.53; Amended by law no. 9888, dated 10.3.2008 published in the OB no. 44; Amended by law no.10 087, dated 26.2.2009 published in the OB no. 32; Amended by law no. 40/2014, dated 17.4.2014, published in the OB no. 67.

      1. The Convention on The Rights of the Child, Approved by the General Assembly of the United Nations on November 20, 1989.
      2. United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines)[1]
      3. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)[2]
      4. The United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules)[3]

       

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

      [2] http://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf

      [3] http://www.ohchr.org/Documents/ProfessionalInterest/tokyorules.pdf

  • Reports, opinions, recommendations and declarations 

    1. 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[1]
    2. Appendix to Recommendation CM/Rec(2008)11 European Rules for juvenile offenders subject to sanctions or measures and Explanatory memorandum[2]
    3. Recommendation CM/Rec(2010)1 of the Committee of Ministers to member states on the Council of Europe Probation Rules[3]
    4. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules[4]

     

    [1] https://wcd.coe.int/ViewDoc.jsp?p=&id=1367113&Site=CM&direct=true

    [2] https://rm.coe.int/168070ce24

    [3] https://www.pmscr.cz/download/mezdoken_European_Probation_Rules.pdf

    [4] http://pjp-eu.coe.int/documents/3983922/European+Prison+Rules.pdf/e0c900b9-92cd-4dbc-b23e-d662a94f3a96

    1. Report on the draft law “Code of Criminal Justice for Children” [1] provides: “Child-friendly justice means ensuring the respect and effectiveness of the implementation of all children’s rights at the highest achievable level in a country’s justice systems. For this, in particular, justice is required to be accessible, age-appropriate, quick, focused on the needs and rights of children.

     

    1. The report on Implementation of Action Plan for Children 2012- 2015[2], provides: “Strengthening human rights institutions in order to monitor and report about the situation of children in the justice system. This must be followed by the creation of mechanisms of inclusion of children and community awareness raising on the use of national and international strategies and instruments. Guaranteeing the right of the child to be heard in trial in a way appropriate to his/her age and child-friendly, including civil and criminal cases and administrative procedures that affect children in accordance with their age and maturity.”

     

    1. Strategic documents that influence the preparation of legislative initiatives are also: 
    • The Social Protection Strategy, 2015 – 2020;
    • The Political Document of Social Inclusion, 2016 – 2020;
    • The Action Plan for Children in Street Situation, 2015 – 2017;
    • The Strategyand Action Plan to Combat Trafficking in Persons, 2014 -2017.

     

    [1] Link: https://www.parlament.al/wp-content/uploads/2017/01/RELACION-KIODI-I-DREJTESISE-PER-TE-MITURIT-NE-RSH-Resized.pdf

    [2] http://femijet.gov.al/al/wp-content/uploads/T%C3%8B-PLANIT-T%C3%8B-VEPRIMIT-P%C3%8BR-F%C3%8BMIJ%C3%8B-2012-2015.pdf

    1. 32. Article 51 of the Law No. 18/2017 “On the rights and protection of the child”.
    2. Article 332 of the Criminal Procedure Code of the Republic of Albania adopted by Law no. 7905, dated 21.3.1995, amended.
    3. Article 31/8 of the Law no. 8331, dated 21.4.1998 (Amended by law no. 10024, dated 27.11.2008) “On the execution of criminal decisions”.
    4. Articles 10, 11, 11/3 and 32 of the Law no. 8328, dated 16.4.1998 “On the rights and treatment of prisoners and pre-trial detainees”.
    5. Article 31 of the Decision no. 302, dated 25.3.2009 “On the approval of the regulation “On the organization and functioning of the Probation Service and for the determination of standards and procedures of supervising the execution of alternative sentences”.
    6. Paragraph 3 of the General Regulation of Prisons.
    1. Decision no. 302, dated 25.3.2009 “On the approval of the regulation “On the organization and functioning of the Probation Service and for the determination of standards and procedures of supervising the execution of alternative sentences”
    2. The General Regulation of Prisons provides in paragraph 3 the manner of preparing a report on the assessment of the convict’s behaviour.
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Marjana Semini, Erion Cenko
Arta Mandro, Koraljka Bumči