Table of Content

• Comments
  • Purpose
    1. The title of Article 61 contains clearly its purpose. The purpose of this Article is that the competent body, in such a case the prosecutor, have the possible range of action to set conditions to the taking of the decision regarding the measure of diversion from the criminal prosecution for the minors conflicting with the law, depending on the meeting of obligations set out in accordance with this Article. This Article aims at providing the opportunity to the prosecutor to effect the suspension of criminal proceedings until the obligations set out as a consequence of the measure of diversion are met and in the event of obligations on the side of the minor being met to decide on terminating the criminal proceedings.

     

    2. The purpose of article 61 is totally harmonized with the principles regarding the prevalence of alternative measures of avoiding from criminal proceedings, foreseen in article 14 of CCJM, which have to be taken into consideration by prosecutor. It is prosecutor’s task to initially suspend the investigation if the child in conflict with the law requests and guarantees fulfilment of the obligations according paragraph 1 of this law. This article is a novelty of CCJM and includes a specific provision regarding the institute of the suspension of investigation that is not regulated by article 326 of CrPC.[1] If child has fulfilled the obligation/s foreseen by this article, the prosecutor is obliged to decide termination of the proceeding.

     

    [1] See article 326 of CrPC, “Suspension of investigations”, amended by the law no. 35/2017

  • Scope
    3. In the first paragraph of article 61 has been foreseen the body that has the discretion to apply this procedure. It is the prosecutor. In addition, this article foresees the way of taking recourse to him, being by way of a request of the minor. According the article, part of the content of the request is the assignment to fulfil one of the obligations foreseen by the letters of the paragraph 1 of article 61 and simultaneously guaranteeing the meeting of obligations. Furthermore, article includes the procedural steps that the prosecutor follows following the conditioned implementation of the measure of diversion from criminal prosecution; type of obligation that the prosecutor imposes on the minor to be met, that are linked with individual context.

      

    4. Article 61 of CCJM provides for an exhaustive list of the obligation being imposed on the minor to be met, as appropriate, as a prerequisite to the diversion measure and being evaluated by the prosecutor.

     

    5. In the second paragraph of this Article there has been foreseen the procedural action to be applied by the prosecutor following the meeting of the obligation by the minor which is effected by way of a decision terminating the criminal proceedings against him.

     

    6. Article 61 of CCJM has been set up as a structure highlighting the fact that the conditioned application of the measure of diversion is under all circumstances done upon the request and guarantee provided by the minor regarding the meeting of obligations by himself.
  • Comments
    7. Regarding the meaning of the phrase ‘The prosecutor may decide on suspending the investigation’ as foreseen in Article 61 of CCJM, the lawmaker has been careful, initially, to determine the proceeding authority, being the prosecutor and, second, vest him with discretion or wider margin or appreciation to decide on making the measure of diversion in the concrete case while making it conditional on meeting the obligations being imposed on the minor for being meet upon him requesting and guaranteeing them. The measure of diversion, as an alternative, measure, as long as conditionally applied, binds the prosecutor to making the decision of suspension of the investigation and, subsequently, upon the completion of meeting the obligations imposed on the minor, of termination of criminal proceedings against the minor conflicting with the law. The power of the prosecutor to decide on the conditional implementation of the diversion measure has been extended and evaluated as a circumstance for suspending the criminal proceedings. The prosecutor has discretion to decide on the suspension of the investigation as long as he is applying the measure of diversion from the criminal prosecution and where it is proceeded with the conditioned implementation of the measure of diversion, since the lawmaker has been based on one of the principles of this Code, such as that of the highest interest of the child (Article 10 of CCJM). The lawmaker has in its very Article 4, paragraph 1, of CCJM determined the scope of activity of this Code and in Article 5 of CCJM the relationship of this Code with CPC and other laws. CPC does not offer any other possibility of suspension in case of deviation, thus the provisions of CCJM are those that shall be applied by the prosecutor.

     

    8. The phrase being used ‘conditional application of the diversion measure’ intends to clarify for the implementers of this code that the prosecution office is entitled to take a decision on the conditional implementation of the measure of diversion. The setting of conditions intends to impose some obligations which are provided for in this Article and this is done by the prosecutor based on the type and gravity of the criminal offence having been committed by the minor, on the conditions and the relationship of the minor to the committed criminal offence. The setting of conditions is instrumental for the minor to understand the gravity of the criminal offence committed by them and simultaneously serving their reentry, this seen in compliance with the purposes of the Code (Article 2 of CCJM).

     

    9. The meaning of the phrase ‘as long as the minor conflicting with the law requests and guarantees the meeting of obligations’ is setting out simultaneously two connected criteria which have to be met to proceed with the conditioned implementation of the measure of diversion by the prosecutor. The first criterion is that a request has to come from the minor because the conditioned implementation of the measure of diversion is always initiated based on the request of the minor conflicting with the law and the second criterion is the guarantee that the minor has to provide for meeting the obligations. It is important to have a written request of the minor and his legal or, as appropriate, procedural representative on the conditioned application of the diversion measure. The request may be made even by his legal or, as appropriate, procedural representative, however, always consulting and providing advise to the minor. The request may be addressed to the prosecutor orally, however, always finalised in a written document, highlighting clearly the expression of intrinsic will of the minor. The minor shall, in his request addressed to the prosecutor on conditioning the diversion measure, provide guarantees on the meeting of obligations and in this way, create the intrinsic conviction with the prosecutor that the minor is going to meet their obligations which are about to be imposed regarding the diversion measure. In order for this guarantee to be reliable and in compliance with Article 55 of this Code, the prosecutor may seek information even from the parents, legal advisers, institutions being aware of the activity of the minor, including the Unit for Protecting the Rights of the Child, as well as the opinion of the expert, referring to the needs of the minor and proceedings.

     

    10. The type of obligations to be met by the minor conflicting with the law for the conditional application of the measure of diversion are respectively found in letter ‘a’ through ‘ç’ of par 1 of Article 61 of CCJM. The prosecutor may, upon the request of the minor, impose one of the obligations, by way of seeking guaranteeing the obligation, too, but he can also determine even more than one obligation to be met, referring to the evaluation of the prosecutor depending on the type and gravity of the criminal offence having been committed. The eventual alternative measures for the diversion from criminal prosecution (part whereof being set out one of the obligations listed in paragraph 1 of this Article and particularly that of getting involved in the restorative justice and mediation programs under letter ‘b’) have been foreseen in Article 62 of this Code and, specifically, they have been separately regulated in Articles 63 - 69 of CCJM. Upon the child becoming in advance aware of the type of obligation being imposed on him by the prosecutor to be met and him having consented in accordance with Article 59 of CCJM, the prosecutor finally decides its implementation. It is decisive that the minor conflicting with the law be well aware and this will come as a consequence of a detailed information given by the prosecutor about the facts how the procedure of implementing and enforcing the measure of diversion will be conducted, by which service and by whom, what are the eventual consequences, what are the various conclusions of imposing these measures, for instance, the success, failure or partial solution, this being in compliance also with the guarantees provided for in Article 60 of this Code.

     

    11. In par 1, letter ‘a’ of Article 61 of CCJM, there has been provided for as an obligation: ‘repairing or recovering the damage incurred by the criminal offence, according to his capabilities and as appropriate’, such obligation being connected also to restorative justice programs. The prosecutor shall, while imposing this obligation and other obligations, take account of the features of the personality of the minor, their character and the gravity of the criminal offence having been committed, the economic, social and family situation they are living in, social environment they have been connected to. Thus, where the person has, by way of their actions, caused a damage to the state or another person (has stolen various items in the residence), the prosecutor shall impose on the minor the recovery of the damage having been caused through theft in value. In letter ‘b’ of this Article, there has been foreseen as an obligation: ‘involvement in the programs of restorative justice and mediation’, provided for in Article 63 of this Code. In letter ‘c’ of this Article, there has been foreseen as an obligation: ‘involvement in the activity of a humanitarian organisation or in the activity of the community or protection of environment’, which may be imposed as an obligation by the prosecutor referring to the type of criminal offence committed by the minor to the effect of their education and reentry. In letter ‘ç’, there is foreseen the obligation ‘treatment of addiction to the drugs or other addictions’ in order for the minors being addicted to the drugs, alcohol or bound to other addictions be offered assistance from medical service for their social and health-related reentry. CCJM has provided for the obligation of making the measure of diversion for this category of persons conditional, however, simultaneously demonstrating humanity to them, setting out rules and obligations for their medical treatment. Drawing an analogy with Article 59 of CC[1], the latter providing for the suspension of the imprisonment sentence and putting in probation one or more obligations provided for in Article 60 of CC, referred to as a conditioned release, there is, by way of Article 61 of CCJM, the conditionality of the decision being made and finalised with the meeting of the imposed obligations. In the former case the conditionality is imposed by the court on the convicted person, who has been convicted by the court in connection with the criminal offence, while in the provisions of Article 61 of CCJM the conditionality is seen as a circumstance guiding towards the diversion from the criminal prosecution and the decision making is incumbent on the prosecutor. For imposing the obligations set out in letters a - ç of this Article, it is of principle importance that we have to do with an alternative measure mainly aiming at the rehabilitation of the minor for their reentry as soon and appropriately as possible into the society. In this way, the conditionality of the decision to apply the measure of diversion according to this Article is seen in a more favourable aspect than the eventual alternative measures provided for in Articles 63 - 69 of CCJM, since they are obligations set out by the prosecutor, provided that, after being met, the termination of proceedings be decided finally, thus avoiding the minor go over to formal judicial proceedings.     

     

    12. In par 2 of this Article, there is foreseen that ‘the prosecutor decides finally on the termination of criminal proceedings’ against the minor conflicting with the law as long as the minor meets the obligations according to paragraph 1 of this Article. This regulation should be seen in connection and compliance with Article 328, paragraph 1, letter ‘f’ of CrPC[2], providing for the discretion in termination ‘in the other instances provided for in law’, thus establishing a direct link between CrPC and Article 61 of CCJM. Even if in Article 328, par 1, of CrPC there has been determined that the prosecutor decides on dropping the charges or case, as long as a criminal contravention is alleged referring to the provisions of this Article and legal criteria provided for in Article 55 of CCJM, the prosecutor has discretion to decide on the termination of the prosecution case, as long as he is applying the measure of conditional diversion from the criminal prosecution even if proceeded against in connection with the crimes, since the lawmaker has been based on one of the principles of this Code, such as that of the highest interest of the child (Article 10 of CCJM) and article 14 related with prevalence of alternative measures of diversion. Failing to set out a time period for the prosecutor to determine the termination of proceedings, the lawmaker has inserted the phrase finally, thus setting it out as a favourable rule for the minor, which, immediately after the fulfilment of the obligations imposed for the measure of diversion, binds the prosecutor to proceed by way of decision with the termination of the proceedings, as a final decision, by which the minor benefits the diversion from the criminal prosecution. CrPC in article 329 letter ‘a’ foresees the right of appeal against the decision for the dismissal of case.

     

    [1] See Article 59 of CC ‘Suspension of imprisonment sentences and putting on probation’ and Article 60 of CC ‘Obligations of the convict under probation’, as amended by the laws no 8175, dated 23.12.1996; no 8204, dated 10.4.1997; no 8279, dated 15.1.1998; no 8733, dated 24.1.2001; no 9017, dated 6.3.2003; no 9030, dated 13.3.2003; no 9086, dated 19.6.2003; no 9188, dated 12.2.2004; no 9275, dated 16.9.2004; no 9686, dated 26.2.2007; no 9859, dated 21.1.2008; no 10 023, dated 27.11.2008; no 23/2012, dated 1.3.2012; no 144, dated 2.5.2013; no 98, dated 31.7.2014; no 176/2014, dated 18.12.2014; no 135/2015, dated 5.12.2015 Decisions of CC no 13, dated 29.5.1997; no 46, dated 28.8.1997; no 58, dated 5.12.1997; no 65, dated 10.12.1999; no 11, dated 2.4.2008; no 19, dated 1.6.2011; no 47, dated 26.7.2012.

    [2]See Article 328 of CPC: ‘Dropping of charges or proceedings’, as amended by Law no. 8460, dated 11.02.1999 (amended by law no 35/2017. 

  • Historic context
    13. It is the first time in the Albanian legislation that such a regulation as that of Article 61 of CCJM is provided for, thus setting out the procedural steps to make a decision emerging as a consequence of implementing the measure of diversion from the criminal prosecution of the minor conflicting with the law. More specifically, the CrPC approved by the 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.

     

    14. 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.

     

    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 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.

     

    16. Seen from the perspective of the Criminal Code, the measure of diversion from the criminal prosecution according to Article 55 of CCJM is a novelty. As such, this measure imposed by the prosecutor cannot be considered as equal or similar with article 52 of Criminal Code that it is about the exclusion of child from conviction by the court. 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.
  • International acts
    17. UNO Convention on the Rights of the Child (approved by the General Assembly of United Nations Organisation on 20 November 1989). Article 3, par 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.

     

    18. Recommendation no R (87) 20 Of the Committee of Ministers to Member States on Social Reactions to Juvenile Delinquency on the social reactions to minors accused of having committed criminal offences encourages the conduct of the procedures of diversion and mediation.

    "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 17.08.2017

     

    19. 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. The aim of the recommendation is to achieve a greater unity between its member states, in particular through harmonising laws on matters of common interest for an interaction at European level for better protecting the rights and welfare of minors conflicting with the law and for developing the justice systems for minors to the interest of the minors. Mediation or other restorative measures shall be encouraged at all stages of dealing with offending juveniles. Any justice system dealing with juveniles shall ensure their effective participation concerning the imposition as well as the implementation of sanctions or measures. Any justice system dealing with juveniles shall follow a multi-disciplinary and be integrated with wider initiatives for juveniles for the continuity of the care of such juveniles (principles of community involvement and continuous care). The juvenile’s right to privacy shall be fully respected at all stages of the proceedings.

    Link: File:///F:/Komentari%20elektronik/2%20Training%20Manual%20for%20the%20Professionals%20Working%20with%20Juveniles%20within%20Penitentiary%20System.pdf

• 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 20 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)
  • United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana rules 1990);
  • United Nations Standard Minimum Rules pertaining to Non-custodial measures (Tokyo rules) (1990).
  • 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.
  • Declaration on the Rights of the Child.
  • EU Charter of Human Rights

   

  American Department of Justice; Justice Office for minors and crime prevention. National Justice Institute (Cases and practice) 

  20. Referring to the research analysis of the cases and practices of various states in USA summarised in Juvenile Diversion Guidebook Prepared by the Models for Change Juvenile Diversion Work Group emerged that:

  “Hamilton County Juvenile Community Courts Ohio Overview:

  The Hamilton County Juvenile Community Courts in Ohio divert youth who have committed minor, first time delinquency, or status offenses to an unofficial court where community volunteers assess the youth’s offense and impose sanctions. If requirements are completed successfully, the youth avoids the formal filing of charges. The program operates on the premise that youth will be more inclined to change their behavior after learning how their offenses impact members of their community. The Hamilton County Juvenile Community Courts have been in effect since 1958 and are operated and funded through a partnership between a juvenile assessment center and local law enforcement. Target Population: The program targets youth between the ages of 10–17. Generally, they are first-time offenders charged with minor misdemeanor offenses. Program Description: The juvenile court trains community volunteers to serve as referees at a semi-formal, yet unofficial hearing about the juvenile’s delinquent behavior at which time they impose a disposition. Any first-time offender can be set before the community court as long as the complaint came from the school or police. Penalties include community service, counseling, essays, and unofficial probation periods. Restitution is ordered if it is agreed upon by the defendant and the victim. If the youth has no other claims filed against them within one year, the report on the original offense is destroyed and the youth will have no official juvenile court record. An outside study of 393 cases heard in the Hamilton Community Courts over one year found that only 10.1% of youth recidivated in the year following their hearing instruments to identify the youth’s most critical needs. The three assessment instruments are 1) the Child and Adolescent Functional Assessment Scale (CAFAS), which is used to assess mental health needs; 2) the Substance Abuse Subtle Screening Inventory (SASSI) for adolescents, which is used to assess substance use needs; and 3) the Youth Checklist/Case Management Inventory (YCL-CMI), which is used to assess the amount of reentry services needed. The amount of reentry services generally ranges from 100 to 300 hours of post-release, case-management services for 6 months. Youths who are identified as needing mental health and/or substance use treatment are referred to a community-based treatment provider. The amount and length of time of specialized mental health or substance use treatment is determined by the treatment provider following referral from the case manager. These sessions can range from 1 to 12 sessions.

  After youths are released, they meet with their case managers weekly for the first 2 months and then biweekly for the remaining 4 months.

  Link: http://www.modelsforchange.net/publications/301

   

  21. 16th JDC Prosecutor’s Early Intervention Program (PEIP) Louisiana Overview: “The Prosecutor’s Early Intervention Program (PEIP), established in 2006, identifies and provides services for middle school-aged youth who have committed status or other minor offenses. PEIPs mission is to “address risk factors and enhance protective factors through early identification, assessment and intervention with status offending youth and youth with delinquency charges for minor offenses thereby reducing exposure of youth to the juvenile justice system.” The program is funded and operated by the local District Attorney’s office Family Services Division and serves 7 of the 13 middle schools in the 16^th Judicial District, Louisiana. Target Population: The diversion program targets youth in grades 6–12 that have school behavioral or attendance problems, or who have committed minor delinquent offenses, and are assessed to be at risk for future delinquency. Program Description: School personnel may refer a youth due to truancy, violation of school rules, or if the youth’s parent or caretaker refuses to meet with school personnel to discuss the problem behavior. Once referred, youth are required to attend a family conference where an Informal Family Service Plan Agreement is completed. This Agreement outlines the recommended services for the youth and family and contains the plan for the delivery of those services. Progress is monitored by school-based case managers. If the youth complies with their service plan and the case manager sees demonstrated improvements in behavior, the case can then be closed. If not, the case manager may then refer to the youth to a committee or to juvenile court where a mandate to comply with the terms of the Agreement can be requested. Preliminary outcome data analyzed by the Office of Juvenile Justice shows a reduction in the number of youth entering the system. District court data shows the number of middle school-aged youth sent to court has declined, as has the number of youth adjudicated delinquent.”

  Link: http://www.modelsforchange.net/publications/301

• Legislative material

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

  Report dated 28.03.2017 on the draft law “Code of Criminal Justice for Children in the Republic of Albania”.

  http://www.reformanëdrejtesi.al/sites/default/files/relacioni-1.pdf , 

  Assembly Decision no 97/2016 package of 27 draft laws. http://www.reformanëdrejtesi.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 “Code of Criminal Justice for Children in the Republic of Albania” “http://www.reformanëdrejtesi.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, Article 59, Article 60. 

  Criminal Procedure Code of the Republic of Albania, Article 326, 328.

• Sublegal acts
  No Comment
• Decisions
  No Comment
• Literature

  European Court of Human Rights

  Link: http://hudoc.echr.coe.int/eng#, visited for the last time on 25.08.2017 

  Juvenile Diversion Guidebook Prepared by the Models for Change Juvenile Diversion Workgroup

  Link: www.modelsforchange.net/publications/301

  Office of Juvenile Justice and Delinquency Prevention

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

  Justice System Analysis

  http://www.reformanëdrejtesi.al/sites/default/files/procesverbal_date_24.06.2016_0.pdf 

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

  RECOMMENDATION No. R (87) 20 OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON SOCIAL REACTIONS TO JUVENILE DELINQUENCY

  http://archivio.transnazionalita.isfol.it/file/CoE_Rec_R87-20%20Eng.pdf 

  Recommendation CM/Rec(2008)11 of the Committee of Ministers to member states on the European Rules for juvenile offenders

  http://archivio.transnazionalita.isfol.it/file/CoE_Rec_R2008-11%20Eng.pdf

  TRAINING MANUAL FOR PROFESSIONALS WORKING WITH MINORS IN THE PENITENTIARY SYSTEM

  File:///F:/Komentari%20elektronik/2%20Training%20Manual%20for%20the%20Professionals%20Working%20with%20Juveniles%20within%20Penitentiary%20System.pdf

• Archive
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