Table of Content

• Comments
  • Purpose
    1. This Article intends to introduce a series of criteria and conditions serving as a guide for the competent body regarding the decision-making for applying the measure of diversion from the criminal prosecution for the minors conflicting with the law. Thus, Article 55 of CCJM aims at attracting the attention of the competent body, i.e., proceeding authority, being, as appropriate, the prosecution office in the phase of criminal prosecution and court in the phase of the trial, not to proceed criminally with the minor conflicting with the law and in connection with whom there is reasonable suspicion that he has committed the criminal offence whereof the law provides for imprisonment up to five years as a maximum punishment or punishment to penalty, as well as under the circumstances provided for in the letters of paragraph 3 of this Article.

     

    2. By way of this Article, the lawmaker aims at providing clarity to the competent bodies in two important aspects. First, referring to paragraph 1 of Article 55, always referring to minors conflicting with the law, an evaluation of the application of the diversion measure should be made and this should be in compliance with Article 14 of CCJM and, second, in the situations of paragraph 3 of Article 55, the diversion should have a priority over criminal prosecution.

     

    3. Article 55 intends to make evident the relationship between the diversion and investigation procedure by the prosecutor and the adjudication by the court. This Article highlights the mandatory rules to be followed by the latter in the event of making the decision on the diversion measure. This measure is seen as the first alternative and it aims at not putting the minor to prosecution and criminal liability.

     

    4. This measure is determined referring to the nature and gravity of the criminal offence having been committed while helping, in this way, the minor to get integrated into the social life, in accordance to Article 2 of this Code. The purpose of the justice for minors is determined as such that it has to ensure the welfare of the minors and that the measures and punishments rendered for minors be proportional to the needs for detaching them from the path of criminality and for their education.
  • Scope
    5. There is foreseen through the entire paragraphs of Article 55 what should the competent body, being bound to evaluate the possibility of taking the diversion measure. To the effect of the purpose of observing the highest interest of the child[1], the lawmaker did the breaking down, into separate paragraphs, of the criteria and general conditions due to be taken account of by the proceeding authority and the special criteria which incur the mandatory application of the diversion measure.

     

    6. The structure of this article is oriented towards ordering the legal criteria and conditions that should be taken into account by the competent bodies, while assessing and implementing the diversion measure.

     

    [1] See Article 3, paragraph 1, of the United Nations Convention on the right of the Child, 20 November 1989, providing for that all the decisions surrounding the child, taken by the public or private institutions of social welfare, by the courts, administrative authorities or legislative bodies, the highest interest of the child shall be considered to be prevailing.

  • Comments
    7. Par 1 of Article 55 of CCJM highlights that the competent body in any case shall assess the taking of the measure of diversion against the child in conflict with the law. Thus, the competent body makes the evaluation by way of giving priority to the application of alternative measures of diversion facilitating the rehabilitation of the minor and serving the purpose of protection of the rights and legal guarantees for the minor. Under this paragraph, the competent body shall, in all instances and without any exception, evaluate whether it may take the measure of diversion, as often as it is appropriate, possible, necessary, provided that the rights of the minor and his protection is fully observed.

     

    8. The criteria for evaluating the diversion measure are those which guide the structure of the Article. The diversion of the minor from the criminal prosecution should be granted by way of evaluating the best interest of the child, his involvement in the criminal offence, the gravity of the fact he has been proceeded against and the conviction foreseen for that offence, the degree of guilt of the minor, his attitude to the offence he has committed and the reports of individual evaluation, the impact emerging out of the criminal offence and the sensibility transmitted to the minor by the criminal prosecution. The best interest of the child should be the prevailing consideration in all the issues affecting children. In the evaluation of the best interest of the children being involved or affected, there has to be taken into account: a. Their opinions and thoughts, which should be ascribed the appropriate relevance; b. all the rights of the child, such as the right to dignity, freedom and equal treatment, which should be observed at any time; c. psychological and physiological well-being and legal, economic and social interests of the children. Paragraph 2 of Article 55 of CCJM foresees the facts and circumstances which should be evaluated by the proceeding authority for taking the decision of implementing the diversion measure which are the best interest of the child in the spirit of the United Nations Convention on the Right of the Child, 20 November 1989; gravity of the criminal offence having been committed and the punishment foreseen for that offence which is connected to the criteria of the application of the diversion measure under par 3, letter ‘a’ of Article 55. There is also evaluated the age of the minor, degree of guilt, damage incurred, deterring impact of the criminal prosecution. The deterring impact in this case has to do with the entire consequences incurred by the criminal prosecution to the emotional situation and mental health of the minor conflicting with the law, such being consequences having an impact on their conduct and way of living, the conduct of the minor subsequent to the commission of the criminal offence.

     

    9. It is important for the authorities being competent under this law to have the meaning of the phrase ‘in every instance’ being used in paragraph 1, Article 55, clarified as opposed to the phrase ‘in a specific way’, used in paragraph 3 of Article 55 of CCJM. In the event of paragraph 3, Article 55, the obligation to apply the diversion measure by the competent body is associated with a series of conditions and criteria for its implementation. The phrase ‘specifically’ binds the proceeding authority to apply the measure of diversion, as long as the conditions and criteria being listed referring to the following letters of paragraph 3 of Article 55 of CCJM, have been met cumulatively, while paragraph 1 of Article 55 is generally applicable as often as there are instances with minor offenders.

     

    10. Regarding the terms being used in this Article, they have to be taken referring to the meaning assigned to them by the lawmaker in this Code. Thus ‘diversion’ has the meaning of an alternative measure for not initiating, for the suspension or termination of prosecution against a minor offender. All paragraphs of Article 55 of CCJM are dealing with the ‘competent body’, which in accordance with this Article is the proceeding authority, such as the prosecution office at the stage of criminal investigation and the court during the stage of trial regarding taking the measure of diversion from criminal prosecution. Thus, although Article 3, paragraph 15 of the CCJC provides for a wide meaning of the term competent authority, listing, in an almost exhaustive manner. In this Article the meaning of the term should be linked with the content of the Article and consequently with the competencies of their actual discretion. . The competent body for imposing the measure of diversion from prosecution according to CCJC, Article 55, 56 and 57 of CCJM, is the prosecution office and the court. The other bodies and structures enlisted according to Article 3, par 15, of CCJC are inter-active among each-other in the criminal proceedings and rendering justice for offending minors. ‘Minor offender’ has the meaning provided for in Article 3, paragraph 4, CCJC.

     

    11. Regarding the definition ‘there is sufficient evidence for a grounded suspicion that the minor has committed a criminal offence’, provided for in letter ‘a’ of paragraph 3 of Article 55 of CCJM, referring also to Article 19 where it has been provided for ‘Rights of the offending minor’, there has been set out that the offending minor enjoys the rights contained in the CPC at each stage of the proceedings, as well as the specific rights provided for in this Code. Where the proceeding authority does not have sufficient evidence to proceed with a case, it cannot recourse to the opportunity of diversion in order to reach an outcome which could not obtain differently if we have to do with a minor offender. This would consist a serious violation of the rights of the minor, who should be presumed innocent until the moment when his guilt is established.

     

    12. Letter ‘b’ of par 3 of Article 55 of CCJM regarding the imposition of the measure of diversion from prosecution requires the minor to admit his guilt in the presence of the defence lawyer to have carried the criminal offence and provide explanations regarding it. Care should be taken of specifically for the diversion to ensure the admission of the liability by the minor regarding their actions. Where the proceeding authority, as appropriate being the court or prosecution office, has to take the entire necessary measures, the latter due to guarantee in the course of the proceedings the avoidance of the risk that the minor be impacted unfairly in order to admit to their guilt regarding a violation while infringing their right to remain silent. 

     

    13. The minor not having been charged or a recidivist is conditional to the measure of diversion under letter ‘c’ of part 3 of Article 55 of CCJM being applied. Regarding this issue, we share the opinion that in the eventuality of the minor being a recidivist or not, this is clear since they have to have been convicted by a final decision in connection with the commission of the same criminal offence, however, it seems to us that the lawmaker did not accurately clarify how the condition for the denounced is going to be observed, as long as the proceeding authority has pronounced no decision.

     

    14. The measure of diversion from criminal prosecution aims at eliminating the eventuality of renewed commission of the criminal offence by the minor with the assistance of their rehabilitation and their re-integration into the community where he is living and acting. This measure is made by the prosecutor ex officio or upon the request of the offending minor or their representative, as long as the judicial examination of the case against the minor has not started. The application of the diversion measure may be decided, as appropriate, even by the court.

     

    15. The authority proceeding with the application of measure of diversion from criminal prosecution shall take account of the fact that the punishment of the minor with regard to those criminal offences does not facilitate the rectification of their conduct. The sentencing of the minors in connection with the commission of some categories of criminal offences has put them in such situations that they have not only not had any rehabilitation impact, but they found themselves under such circumstances that they were induced to further delinquent conducts. This the conviction may stop or negatively impact the correction of their conduct. The diversion may, as a measure, be taken in the event when the subject matter of the criminal offence, whereof the minor is suspected of having committed, falls under the category of these criminal offences posing no high social dangers, i.e., it does not affect the relationship of the individual with the society to the extent of risking incurring the prosecution of the minors, since it is associated with no high public interest.

     

    16. Par 4 of Article 55 of CCJM foresees that the proceeding authority may seek information and this is not mandatory for imposing that measure. The information may be obtained from the parents, legal custodians, institutions being aware of the activity of the minor, including, as appropriate, the Unit for the Protection of the Rights of the Child[1], as well as the opinion of the expert[2], referring to the needs of the minor and process.

     

    [1] The Unit for the Protection of the Rights of the Child is a child protection structure at the local level under the law in force on the rights and protection of the child. See Article 49 of Law no. 18/2017 'On the Rights and Protection of the Child'

    [2] According to article 3 point 15 of the KDPM, the terms "Competent Bodies / participants in the juvenile justice administration" including experts as appropriate.

  • Historic context
    17. It is the first time in the Albanian legislation that such a regulation as that of Article 55 of CCJM is provided for, thus setting out the procedural steps to make a decision for the application of the measure of diversion from the criminal prosecution of the minor conflicting with the law. More specifically, the CPC approved by law no 7905, dated 21.3.1995, as amended, by law no 8460, dated 11.2.1999, by law no 8813, dated13.6.2002, 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 the 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.

     

    18. In Chapter VII of CCJM, there have, for the first time, been provided for such measures as diversion from criminal proceedings, and from punishment through alternative measures; there have been provided such rules as: meaning and purpose of alternative measures of diversion, implementing the alternative measures of diversion from criminal prosecution, competent body for implementing the measure of diversion from criminal prosecution, conditions for implementing the measure of diversion, consent for the diversion measure, guarantees of the minor for taking the measure of diversion, possibility of the prosecutor for imposing conditions on the decision, eventual alternative measures for avoiding the criminal prosecution, restorative justice programs and/or mediation, procedure of mediation, advise for the minor and the family, oral warning, written warning, mandatory measures, putting the minor under care, meeting alternative measures for diversion from criminal prosecution, failure to meet the alternative measures for diversion from criminal prosecution, procedure in the event of failure to meet the alternative measures of diversion from criminal prosecution.

     

    19. In Justice System Analysis the Senior Level Experts Group at the Parliamentary Ad Hoc Committee for the Justice System reform has highlighted that in Article 46 of the Criminal Code, there are foreseen, inter alia, the educational measures for the minors and concretely putting the minor in an educational institution. In practice, the court has applied the educational measure by way of ordering to put the minor in an educational institution, however, in all the case when the court has applied such a measure, the decisions have remained un-enforced, since there are currently no such institutions in our country.

     

    20. Seen from the perspective of the Criminal Code, a similar measure to the measure of diversion from the criminal prosecution is the measure of exemption of the minor from the punishment under Article 51 of the Criminal Code, which was imposed by the court, the latter referring to the low dangerousness of the criminal offence, concrete circumstances of commission and previous conduct of the minor. A novelty, being brought about by the measure of diversion from the criminal prosecution according to Article 55 of CCJC is that it may be imposed by the prosecutor, which previously, based on Article 52 of the Criminal Code, could be imposed only by the court and this was the case after the conviction of the minor. The measure of diversion from the criminal prosecution is a measure which, in each instance, observe the highest interest of the child, thus not holding him criminally accountable and ensuring to him his education through other alternative measures imposed on cases basis referring to the nature and gravity of the criminal offence having been committed.

     

    21. As a practical example for the application of Article 52 of the Criminal Code which was requested by the prosecutor and decided by the Court in the decision no 1536/2015 of the Judicial District Court Tirane, the section for minors, wherewith the exemption of the defendant minors L.P., N.B., and E.V., being charged of having committed the criminal offence of ‘Theft’, committed in complicity under Article 134/2 of Criminal Code, was decided. The Court has, in rendering this decision, taken account of the insignificant danger posed by the criminal offence committed by the defendants, the fact that the defendants admitted to their guilt and having demonstrated deep regret for the criminal offence which was committed under mitigating circumstances provided for in Article 48, letters ‘c, ç, dh’ of the Criminal Code. Due to these reasons, the court deemed that Article 52 of the Criminal Code regarding their exemption from conviction had to be applied, even due to the fact that they are students in the high school, with satisfactory results and their criminal conduct at a certain stage, considering also their minor age and the degree of maturity and evaluation, has indicated an weakness of theirs under these circumstances of the fact. This is the reason why this is an opportunity that the Court grants to them to get rehabilitated as soon as possible and follow normally their schooling and everyday activities.
  • International acts
    22. Convention on the Rights of the Child. Article 3, paragraph 1, of the Convention determines that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

     

    23. 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 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: “5. The imposition and implementation of sanctions or measures shall be based on the best interests of the juvenile offenders, limited by the gravity of the offences committed (principle of proportionality) and take account of their age, physical and mental well-being, development, capacities and personal circumstances (principle of individualisation) as ascertained when necessary by psychological, psychiatric or social inquiry reports. Linku: https://www.unicef.org/tdad/councilofeuropejjrec08(1).pdf

     

    24. Recommendation no R (87) 20 of the Committee of Ministers of the Council of Europe on the social reactions To Juvenile Delinquency 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 co-operation 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;" Linku: http://archivio.transnazionalita.isfol.it/file/CoE_Rec_R87-20%20Eng.pdf. Visited for the last time on 29.07.2017

     

    25. American Department of Justice; Justice Office for Minors and Crime Prevention (Cases and practice) 39. The diversion from the prosecution as a measure is based on the principles of the formal proceeding system, aiming at minimising the effects of imprisonment on the minors and, due to this reason, it is a more appropriate and better measure for the long-tern development of minors (Bishop and Decker 2006; McAra and McVie 2007; Loeb, Waung, and Sheeran 2015). By way of creating informal channels of navigation, the minors (generally those having for the first time been proceeded against in connection with the commission of a criminal offence), as opposed to a traditional process, the application of the measure of diversion by way of various programs serves as an opportunity to correct the minors in their anti-social conducts, being assisted by the family and community and not going through the judicial system. (Kammer, Minor, and Wells 1997; Patrick and March 2005). The application of the measure of diversion by way of other alternatives of various programs aims at keeping the minors under their control regarding their behaviours (Mackin et al. 2010; Beck et al. 2006) while no being involved in judicial proceedings according to standard proceedings. This alternative measure reduces the stigmatisation and recidivism, while serving the socialisation of the offending minor, while involving them in the community through the alternative social services (Harris et al. 2011; Leve and Chamberlain 2005; Osgood and Weichselbaum 1984). The diversion measure also reduces the risk of being in company of persons with criminal record, while providing positive models of peers, installing discipline, involving them in the appropriate school programs and increasing the degree of including the minors in rehabilitation programs (Loeb,Office of Juvenile Justice and Delinquency Prevention). Programs.pdfwww.ojjdp.gov/mpg/litreviews/Diversion.
• International standards/International references/Best examples

  Reports, opinions, recommendations and statements

  ‘Convention on the Rights of the Child’ being approved by the General Assembly of the United Nations Organisation on 200 November 1989, Article 3, point 1, Article 12, point 2, Article 15, point 2, Article 40, point 2 and point 4.

  UNO Instructions on Preventing Juvenile Delinquency (Riyadh Instructions)

  Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") Articles 10 (2)(b), 10(3), 14(4)

  United Nations Standard Minimum Rules pertaining to Non-custodial measures (Tokyo rules) (1990).

  Declaration on the Rights of the Child.

  EU Charter of Human Rights.

   

  Decisions of the European Court of Human Rights (according to the European Court of Human Rights) 

  Ali v. United Kingdom, 11 January 2011. Link: http://hudoc.echr.coe.int/eng#, visited for the last time on 29.07.2017. The case surrounded the expulsion of the minor applicant from school in the course of a police investigation regarding arson at his school, since he was close to the scene of event at that time. He was offered another alternative school and following the termination of criminal proceedings against him, his parents were invited at a meeting in the school to discuss his re-integration. The applicants alleged the infringement of Article 2 (Right to education under protocol 1) of the Convention, while highlighting that the right of the child for education was denied by the decision of the steering staff of the school made, since they delayed his return to school, while his membership to school was granted to another child.  For more, see the paragraphs 59, 60, 61, and especially 63.

• Legislative material

  Analysis of Justice System in Albania, June 2015, drafted by the Senior Experts Group at the Ad Hoc Parliamentary Committee for Justice System Reform. -http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, 

  Report dated 28.03.2017 on the draft law “Criminal Code of Justice for Minors in the Republic of Albania”.http://www.reformanedrejtesi.al/sites/default/files/relacioni-1.pdf , 

  Assembly Decision no 97/2016 package of 27 draft laws. http://www.reformanedrejtesi.al/sites/default/files/relacioni-1.pdf , 20 November 1989 

  Minutes dated 27-28 March of the Legal Issues Committee on the examination and approval of the draft law “Criminal Justice Code for Minors in the Republic of Albania” “http://www.reformanedrejtesi.al/sites/default/files/procesverbal_date_24.06.2016_0.pdf

• Related articles

  Constitution, Article 27 par 2 letter “ç”, Article 54 par 1, point 3 and point 4, Article 30, Article 31.

  Criminal Code of the Republic of Albania, Article 12, Article 52, Article 46.

  Criminal Procedure Code, Article 228.

  Law no 18/23.2.2017 “On the Rights and Protection of Children’, Article 49.

• Sublegal acts
  No Comment
• Decisions
  No Comment
• Literature

  European Court of Human Rights 

  Ali v. the United Kingdom 11 January 2011

  M. Ts v. Georgia (no 71776/12) 2 February 2016 

  Stagno v. Belgium 7 July 2009 

  Rights to access to court (Article 6 of the Convention) Stagno v. Belgium 7 July 2009 

  Bishop, Donna M., and Scott H. Decker. 2006. “Punishment and Control: Juvenile Justice Reform in the USA.” In J. Junger-Tas and S. H. Decker (eds.). International Handbook of Juvenile Justice. New York: Springer, 3–35. 

  McAra, Lesley, and Susan McVie. 2007. “Youth Justice? The Impact of System Contact on Patterns of Desistance from Offending.” European Journal of Criminology 4:315–45. 

  Loeb, Roger C., Marie Waung, and Megan Sheeran. 2015. “Individual and Familial Variables for Predicting Successful Completion of a Juvenile Justice Diversion Program.” Journal of Offender Rehabilitation 54(3):212-237. 

  Kammer, James J., Kevin I. Minor, and James B. Wells. 1997. “An Outcome Study of the Diversion Plus Program for Juvenile Offenders.” Federal Probation 61(2):51–56. 

  Patrick, Steven, and Robert Marsh. 2005. “Juvenile Diversion: Results of a 3-Year Experimental Study.” Criminal Justice Policy Review 16(1):59–73. 

  Mackin, Juliette R., Lisa M. Lucas, Callie H. Lambarth, Theresa Allen Herrera, Mark S. Wallter, Shannon M. Carey, and Michael W. Finigan. 2010. Baltimore County Juvenile Drug Court Outcome and Cost Evaluation. Portland, Ore.: NPC Research. 

  Beck, Victoria Simpson, Robert J. Ramsey, Thomas R. Lipps, and Lawrence F. Travis. 2006. “Juvenile Diversion: An Outcome Study of the Hamilton County, Ohio, Unofficial Juvenile Community Courts.” Juvenile and Family Court Journal 57(1):1–10. 

  Harris, Philip W., Brian Lockwood, Liz Mengers, and Bartlett H. Stoodley. 2011. “Measuring Recidivism in Juvenile Corrections.” OJJDP Journal of Juvenile Justice 1(1): 1-16. 

  Leve, Leslie D., and Patricia Chamberlain. 2005. “Association with Delinquent Peers: Intervention Effects for Youth in the Juvenile Justice System. Journal of Abnormal Child Psychology 33(3):339– 47. 

  Osgood D. Wayne, and Hart F. Weischselbaum. 1984. “Juvenile Diversion: When Practice Matches Theory.” Journal of Research in Crime and Delinquency 21(1):33–56. 

  Loeb, Roger C., Marie Waung, and Megan Sheeran. 2015. “Individual and Familial Variables for Predicting Successful Completion of a Juvenile Justice Diversion Program.” Journal of Offender Rehabilitation 54(3):212-237.

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