Table of Content

• Comments
  • Purpose
    1. Through the stipulation of standard procedures for the application of the diversion measure, Article 56 intends to guarantee the protection of the best interest of the child, his social integration, the rehabilitation of the child in conflict with the law, the protection of the rights of the children, the promotion of the reintegration of the child in conflict with the criminal law and to ensure that the child will play a useful role in the society. Also, this article intends to enhance and guarantee the re-socialisation and the rehabilitation of the child who has committed a criminal offence, in compliance with Article 2 of this Code.

     

    2. This article is mainly of a procedural nature. Apart from the discretion of the prosecutor, article 56 of the CCJC specifies even the time frame at the disposal of the prosecutor to make a decision in relation to the diversion measure; the way of making the decision, which may be upon the initiative of the prosecutor or upon the request of the child in conflict with the law or his representatives; the importance of the child’s consent as a condition without which there is no measure of diversion; the procedural effect of the diversion measure decision; the cases when the prosecutor does not accept the request of the child and the role of the court in this regard. This procedure intends to apply the diversion measure which intends to mitigate the consequences of the criminal offence, the conciliation or the mediation of the parties in conflict as well as the reintegration and the rehabilitation of the child in conflict with the law.

     

    3. Article 56 intends to identify the procedure that shall be followed by the prosecutor for the implementation of the diversion measure and the way how this procedure may be initiated in the case of the application of the diversion measure as an alternative which intends not to confront the child with the criminal liability providing education for him through other alternative measures according to the nature and seriousness of the criminal offence that has been committed, assisting him to reintegrate in the social life and minimizing the possibility that he may commit another criminal offence in the future.
  • Scope
    4. The focus of article 56 is to identify the rules and the procedures that are applied when the prosecutor applies the diversion measure.

     

    5. The second paragraph provides for the body which, based on this law, applies this procedure. This body is the prosecutor. It also stipulates the procedural moment when this measure is applied. This moment is the period before the beginning of the judicial examination of the case. Up to this moment, the prosecutor may decide for the application of the diversion measure for the minor defendant in conflict with the law.

     

    6. Article 56 has a descriptive nature regarding the procedural steps that have to be followed during the decision-making process for the implementation of the diversion measure. This article identifies the participants in this procedure, namely the decision-making body, the prosecutor and the child in conflict with the law and his legal or procedural representative. The structure of this article focuses on the two modes of commencing the procedure on taking the decision for the diversion measure: upon the request of the child or of the representative. Here, we can relate with Article 58 CCJC in order to have a better understanding of the consequences of applying the diversion measure.
  • Comments
    7. According to article 56 of this Code, the legislator uses the phrase “before the judicial examination of the case starts” to provide a broader action space to the prosecutor to rule on the decision for the diversion measure. Up to this moment, the prosecutor may decide for the application of the diversion measure for the minor defendant in conflict with the law. After the prosecutor applies the diversion as an alternative measure, the latter compels him to make a decision for the non-commencement, the suspension or the dismissal of the criminal offence against the child in conflict with the law.

     

    8. The legislator provides for two ways to initiate an application procedure for the measure of diversion: the first one is upon the initiative of the prosecutor himself and the second one with the request of the child in conflict with the law or his representatives. According to this Code, the representative of the child may be his legal or procedural representative. With regard to the meaning of the phrase “legal representative”, article 3 paragraph 16 of this Code shall be used stipulating as such the parent, the relative (the person with a close family, gender or marriage relationship with the child), Article 3 para. 8 of the CCJC, or the guardian of the child (the person who has been appointed as such by the court according to the provisions of the Code of Family, in title V chapter I, article 63 and in continuation according to the institute of guardianship and legislation into force), who participates in the procedure of criminal justice for children to protect the interests of the child, Article 3 paragraph 16 of the CCJC. Drawing an analogy with article 16 of the CPC, the phrase “close kinship” means: antecedents, descendants, brothers, sisters, uncles, aunts, nephews, nieces, children of sisters and brothers or close in-laws: mother-in-law, father-in-law, son-in-law, daughter-in-law, sister-in-law, brother-in-law, stepson, stepdaughter, stepmother, stepfather. The definition “Procedural representative” is provided for in article 3 paragraph 17 of this Code, determining as such the person stipulated in Law no. 18/2017, article 3, paragraph 12 “On the rights and the protection of the child”, who carries out the procedural representation of the child according to the provision of this Code, Article 3, paragraph 17 of the CCJC.

     

    9. The commencement of the diversion measure with the initiative of the prosecutor: Paragraph 3 of this article provides for that in cases when the diversion measure is taken upon prosecutor’s initiative, the latter proposes to the child in conflict with the law the measure of diversion from criminal prosecution, stipulated in article 62 of this Code and specifically stipulated by article 63-69 of the CCJC. The prosecutor takes this initiative based on the fulfilment of the conditions and criteria, provided for in article 55 of this Code for the application of the alternative measure of diversion from the criminal prosecution. After the child is introduced to the measure proposed by the competent body, he shall necessarily give the consent, in order for the competent body to decide its implementation eventually. Free consent is a very delicate aspect. The freedom of consent is a clear interior will constructed based on a clear informing and understanding of the process and of the effects Article 3, paragraph 10 of the CCJC. It is crucial that the child in conflict with the law shall be aware and this will come as a result of a comprehensive and detailed information provided by the prosecutor on the facts how the execution procedure of the diversion measure shall be carried out, the potential consequences, the various conclusions from this measure such as the success, the failure of the partial solution. The criminal justice bodies are in charge of providing the information. Each party shall be informed separately if necessary. Such information is necessary in order for the parties to have the opportunity to exercise the right for consent. The criminal justice bodies shall make every decision taking into consideration the highest interest of the child according to the CCJC, the UN Convention on Children’s Rights and the European Convention on the Exercise of Children’s Rights. The consent given or taken under the conditions of threatening, intimidating, deceiving or any other mode of physical or mental violence is not valid and makes the entire procedure invalid.

     

    10. Rejection of the diversion measure from the child. Article 56, paragraph 4 provides for that when the request/proposal of the prosecutor on the application of diversion is not accepted by the child in conflict with the law, a record shall be kept indicating the reasons of rejection by the child. It is important for us to have a record in writing to highlight clearly the reasons why the child has rejected the implementation of the diversion measure, which is signed accordingly by both parties of this process, the prosecutor and the child, or his legal or procedural representative. Despite the procedure that will be followed by the proceeding body regarding this record, we should remain very strict with the form of reflecting the rejection reasons, which should always be in writing in the form of a record kept by the proceeding body.

     

    11. The commencement of the procedure for the diversion measure upon the request of the child in conflict with the law or his representative. In case the child in conflict with the law claims the application of the diversion measure, the child shall address the prosecutor a reasoned request expressing the consent for the implementation of the diversion measure. The competent body, namely the prosecutor, shall highlight the fact that the will of the child is materialized in the request drafted by him. The child has expressed his free will for the application of the diversion measure, through the “voluntarily” acceptance, according to article 60 paragraph 2 of this Code. This principle is indisputable as the measure of diversion from criminal prosecution is not taken without the child’s consent in writing Article 59 CCJC. This consent is given with a clear will based on clear information and understanding of the process and of the effects according to the requirements of Article 60 of the CCJC, in order for the child to be informed on how the implementation procedure of the diversion measure shall be carried out, which will be the service and who will be the concrete person that will carry it out. The child should also be informed on the potential consequences and on the various results for the implementation of this measure. This is also in compliance with the principles of the free consent and voluntarism, known as acts of the will which accompany the entire process of the diversion measure including the preliminary phase, the approval from the child and subsequently they continue up to the end of the implementation. The authorities shall make this thing clear to the parties, respectively, before and at the beginning of the process. After it is ensured that these guarantees for the child have been respected, the prosecutor shall rule through a reasoned decision if he will accept or not the request for the application of the diversion measure.

     

    12. Rejection of the child’s request by the prosecutor This decision-making of the prosecutor comes as a result of an overall analysis of the circumstances and facts of the case, as we are not before the fulfilment of the conditions and criteria provided for in Article 55 of this Code for the application of the alternative measure of diversion to protect the child in conflict with the law from the criminal prosecution. In case the child’s request is refused, the prosecutor shall make a reasoned decision where he explains clearly and comprehensively, the reasons of the rejection and the aspects the prosecutor has been based on in this decision-making. This decision is notified to the child and to his legal representative or to the procedural representative. Based on the most crucial principle of this Code, which is the protection of the highest interest of the child, the Legislator has provided for the right of the child in conflict with the law to address the court with a request for the application of the diversion measure. This happens in case the prosecutor has refused the application of the diversion measure through a reasoned decision. The time frame for the submission of this request to the court is within 15 days from the receipt of the notification for the decision on the rejection of the application of the diversion measure ruled by the prosecutor.
  • Historic context
    13. It is the first time in the Albanian legislation, at the level of a Code, that such a regulation as that of Article 56 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 child in conflict with the law. More specifically, the Criminal Procedure Code, adopted with Law no.7905, dated 21.3.1995, amended with Law no.8460, dated 11.2.1999, with Law no.8813, dated 13.6.2002, Law no.9085, dated 19.6.2003, with Law no.9276, dated 16.9.2004, with Law no.9911, 5.5.2008, with the decision of the Constitutional Court no.31, dated 17.5.2012, with Law no.145/2013, dated 2.5.2013, with Law no. 35/2017, did not have a similar provision before the adoption of the CCJC.

     

    14. In Chapter VII of CCJM, for the first time there have 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.

     

    15. 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 respectively 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 cases when the court has applied such a measure, the decisions have remained un-enforced, since there are currently no such institutions in our country.

     

    16. 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. Under such circumstances, the court may decide to send the minor to an education institution. A novelty, being brought about by the measure of diversion from the criminal prosecution according to Article 55 of CCJM 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, respects the highest interest of the child, thus not holding him criminally accountable and ensuring him his education through other alternative measures imposed on case basis referring to the nature and gravity of the criminal offence having been committed.
  • International acts
    17. In the framework of the international legislation, it is worth mentioning the standards of the UN Convention for the Rights of the Child, especially Article 3 of the Convention which is related to the best interest of the child in any decision-making and which has to be taken into account from the prosecutor and the representative of the minor. Additionally, it is worth considering Article 12, para. 1 and 2 of the UN Convention on the Rights of the Child regarding the right to freedom of expression.

     

    18. Recommendation (2008) 11 of the Committee of Council of Europe Ministers on the rules related to the conviction or other measures against the accused children. Recommendation CM / Rec. (2008)11 of the Committee of Ministers to member states on assistance to crime victims: the European Rules for juvenile offenders subject to sanctions or measures provides for as follows: “1. Juvenile offenders subject to sanctions or measures shall be treated with respect for their human rights. 2. The sanctions or measures that may be imposed on juveniles, as well as the manner of their implementation shall be specified by law and based on the principles of social integration and education and of the prevention of re-offending. 3. Sanctions and measures shall be imposed by a court or if imposed by another legally recognised authority they shall be subject to prompt judicial review. They shall be determinate and imposed for the minimum necessary period and only for a legitimate purpose. 4. The minimum age for the imposition of sanctions or measures, as a result of the commission of an offence, shall not be too low and shall be determined by law. 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 taking into account 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. 6. In order to adapt the implementation of sanctions and measures to the particular circumstances of each case, the authorities responsible for the implementation shall have a sufficient degree of discretion without leading to serious inequality of treatment. 7. Sanctions or measures shall not humiliate or degrade the juveniles subject to them. 8. Sanctions or measures shall not be implemented in a manner that aggravates their afflictive character or poses an undue risk of physical or mental harm. 9. Sanctions or measures shall be implemented without undue delay and only to the extent and for the period strictly necessary (principle of minimum intervention). 10. Deprivation of liberty of a juvenile shall be a measure of last resort, imposed and implemented for the shortest period possible. Special efforts must be undertaken to avoid pre-trial detention.[1]

     

    19. Recommendation no. R (87) 20 on the social reactions to minors accused of having committed criminal offences encourages the conduct of the procedures of diversion and mediation. RECOMMENDATION No. R (87) 20 OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON SOCIAL REACTIONS TO JUVENILE DELINQUENCY provides recommendations for the governments of member states to review, if necessary, their legislation and practice with a view: "II. Diversion - Mediation 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;".[2]

     

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

    [2] Link: http://archivio.transnazionalita.isfol.it/file/CoE_Rec_R87-20%20Eng.pdf. " Last accessed on 07.08.2017. 

• International standards/International references/Best examples

  Reports, opinions, recommendations and declarations

  20. ‘Convention on the Rights of the Child’ being approved by the General Assembly of the United Nations Organisation on 20 November 1989, Article 3, para. 1, Article 12, para. 2, Article 15, para. 2, Article 40, para. 2 and para. 4. 

  21. UN Instructions on Preventing Juvenile Delinquency (Riyadh Instructions). 

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

  23. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Law no 7727/30.06.1993) and the Additional Protocol to the Convention. 

  24. United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana rules 1990). 

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

  26. Vienna Guidelines for Action on Children in the Criminal Justice System taking account of the day of discussion of the Committee 1995 on the justice administration for juveniles. 

  27. Declaration on the Rights of the Child. 

  28. European Union Level Instruments. 

  29. EU Charter of Human Rights 

  30. Lisbon Treaty 01.12.2009

   

   

  American Department of Justice Office of Juvenile Justice and Crime Prevention. National Justice Institute (Cases and practises) 

  31. According to the study analysis of the cases and practises of the Office of Juvenile Justice it results that:

   Goals/Theory

  When juveniles commit offenses, juvenile justice practitioners (including police officers, district attorneys, court intake officers, and court judges) must decide whether juveniles are formally processed through the justice system, diverted from the system to a program (such as counselling), or are released from the system altogether. Formal system processing for juveniles refers to the practice of processing youths through the traditional juvenile justice system without consideration of alternative sanctions or diversion. Due to the age of offenders and the sensitivities surrounding of their environment and upbringing, the juvenile justice system often relies on rehabilitative sanctions and alternatives to detention when dealing with youth, especially nonviolent first-time offenders. The logic of such sanctions is to provide youth with a second chance and to keep them from further penetrating the juvenile justice system by using any number of diversion programs (such as cognitive behavioural therapy or substance abuse treatment) that aim to prevent further offending behaviour. On the other hand, formal system processing aims to manage young offenders formally through the juvenile justice system, leading them to adjudication and possible detention for their offenses. Of the approximately 1,504,100 delinquency court cases heard in 2009, 55 percent were petitioned and formally handled in the juvenile justice system while 45 percent (680,900 cases) were handled informally through voluntary probation, a different type of sanction (such as a diversion program), or dismissal (Puzzanchera et al. 2012).
  The purpose of the juvenile justice system is to ensure public safety while intervening with juvenile offenders. As such, the role of formal system processing can be understood as one which aims to prevent low-level offending from developing into more serious offending by dealing with young offenders harshly to deter them from a criminal future. From a public safety perspective, formal processing removes the individual from the community to protect the public. Proponents of such measures express the opinion that this teaches young people about responsibility and the consequences of their actions, and prevents them from becoming recidivist offenders by punishing them to the extent of the law. Detractors argue that by further entangling young people and children in the juvenile justice system, they become more likely to be involved in a life of crime because of their increased exposure to other criminal peers, the justice system, and the effects of “labelling” (Petronsino et al. 2010; Schur 1973).
  

  Target Population

  The nature of formal system processing (and juvenile diversion programs) requires that this practice apply only to people under the age of 18. This is due to the much more constrained sentencing possibilities for adult offenders. There is also much less discretion in cases of serious offences. Therefore, the choice between using formal system processing or a diversion program mainly applies to juvenile offenders accused of less serious crimes”.[1]

   

  [1] Link:. Programs.pdfwww.ojjdp.gov/mpg/litrevieës/Diversion. https://rm.coe.int/168046e1e3 last accessed on August 07.08, 2017

• Legislative material
  32. The analysis of the Justice System in Albania, June 2015, drafted by the Group of Experts of the High Level attached to the Special Parliamentary Commission on the Reform in the Justice System.[1] 

  33. Report dated 28.03.2017 on the draft-law “Code of Criminal Justice for Children in the Republic of Albania”.[2] 

  34. Decision of the Parliament No.97/2016, the packet of 27 draft-laws.[3] 

  35. Minutes, dated March 27-28 of the Commission of Juridical Matters, for the review and the adoption of the draft-law “Code of Criminal Justice for Children in the Republic of Albania” [4]

   

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

  [2] http://www.reformanedrejtesi.al/sites/default/files/relacioni-1.pdf ,

  [3] http://www.reformanedrejtesi.al/sites/default/files/relacioni-1.pdf , 20 November 1989

  [4] http://www.reformanedrejtesi.al/sites/default/files/procesverbal_date_24.06.2016_0.pdf 

• Related articles
  36. Constitution: Article 27 paragraph 2, letter “ç”, Article 54 paragraph 1, paragraph 3 and paragraph 4, Article 30, Article 31. 

  37. Criminal Code of Republic of Albania Article 12, Article 52. 

  38. Code of Criminal Procedure of the Republic of Albania, Article 354, 355. 

  39. Law no. 18/2017 “On the rights and the protection of the child”.
• Sublegal acts
  No Comment
• Decisions
  No Comment
• Literature

  European Court of Human Rights V. v. the United Kingdom

  Court (Grand Chamber); 16/12/1999 (Application no. 24888/94) Link: http://hudoc.echr.coe.int/eng#, Last accessed on 07.08.2017 

  Programs.pdfwww.ojjdp.gov/mpg/litreviews/Diversion 

  www.ojjdp.gov/mpg/litreviews/Diversion Programs.pdf

• Archive
  No Comment