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

Article 70: Fulfilment of alternative measures of diversion from criminal prosecution

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1If the alternative measure of diversion from criminal prosecution is taken against the child who has committed a criminal offence, and this measure is fulfilled, no charges over the same criminal offence may be brought against the child.

2If the child fulfils the obligations under the diversion agreement, the prosecutor shall decide dismissing the proceedings immediately.

3The child who has fulfilled the alternative measure of diversion from criminal prosecution shall neither be considered sentenced for a criminal offence and not be treated as a person with a criminal record.

4Fulfilment of the measure of diversion from criminal prosecution is carried out and monitored by the Probation Service in cooperation with the mediation service.

Table of Content

      1. The purpose of article 70 is to stipulate the consequences of the fulfilment of diversion from the criminal prosecution against the minor in conflict with the law and attracts the attention of the proceeding body, namely the prosecutor’s office, for the procedural steps to be followed after the child fulfils the diversion measure, dismissing the case for the pending criminal proceeding.

       

      1. At the same time, the purpose of article 70, paragraph 1 is the determination of the obligations of the prosecutor, as a competent authority towards the child who is the subject of criminal justice and the benefits enjoyed by the child in case he fulfils the alternative measures for the diversion from the criminal prosecution. An obligation for the prosecutor and a benefit for the child is the fact of not raising any charges related to the same criminal offence for which the alternative diversion measure has been rendered as well as the fact of not treating the child as a sentenced person and/or as a person with a criminal past.

       

      1. The purpose of this article follows the same line with other articles of CCJC in manner to guarantee the protection of child and to secure effective protection of the highest interest of the child.[1]

       

      1. Also, this article intends to determine the competence of the Probation and Mediation Service for the realization and the supervision of the diversion measure in order for this decision-making of the prosecutor to be applicable concretely in practice.

       

      [1] See comments regarding the purpose written for article 60 and 61 of CCJC. Also see article 3, paragraph 1, of the United Nations Convention on the Rights of the Children, November 20 ,1989, which 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 highest interest of the child shall be a primary consideration. 

      1. Article 70 of the CCJC, focuses on the prosecutor’s role and the child’s status after the fulfilment of the diversion measure from the criminal prosecution in four paragraphs. Regarding the prosecutor, paragraph 2 of this article provides for that the prosecutor shall proceed with the decision for the dismissal of the case immediately in case the child fulfils the obligations according to the diversion agreement. Even though paragraph 1 of this article does not stipulate that the competent body cannot raise any charges against the child after he fulfils the obligations of the diversion measure, it is implied that this body is the prosecutor, because only the prosecutor has the right to raise a charge and to represent it in the court according to the provisions of the CrPC.

       

      1. Article 70 has a descriptive nature of the procedural steps that shall be followed by the prosecutor and accordingly by the competent body too, after the fulfilment of the obligations determined as an alternative measure for the diversion from the criminal prosecution. These steps, that are realized after the finding that the child has fulfilled the relevant obligations, are explained paragraph after paragraph. After the fulfilment of the obligations: a) no charges can be raised against the child in conflict with the law in relation to this criminal offence, b) the case is dismissed immediately, c) the child in conflict with the law cannot be considered as a sentenced person for a criminal offence and ç) the child in conflict with the law cannot be treated as a person with a criminal record.

       

      1. Article 70 of the CCJC is constructed on a structure which highlights the fact that the fulfilment of the diversion measure is carried out and supervised by the Probation Service in cooperation with the Mediation Service. The Probation Service operates based on law no. 8331 dated 21.04.1998 “On the execution of the criminal decisions”, amended with law no. 10024 dated 21.11.2008. Based on this law, the regulation “On the organisation and the functioning of the probation service and on the determination of the standards and procedures, for the supervision of the alternative sentence execution” was adopted with decision no. 302 dated 25.03.2009 of the Council of Ministers. The Mediation Service operates and is based on law no. 10385, dated 24.2.2011 “On mediation in dispute resolution”.
      1. According to article 70 of the CCJC, regarding the meaning of the expression “no charges over the same criminal offence may be brought against the child”, the legislator relates this thing in close connection to the fulfilment of three conditions: a) firstly, the subject this clause is valid for is a child according to the meaning of article 7 of the CCJC; b) an alternative measure for the diversion from the criminal prosecution is rendered for the child according to the provisions of Chapter VII of the CCJC, more concretely for articles 55-72 of the CCJC, c) this measure has been fulfilled by the child. Only when we are in front of these three conditions, then the prosecutor, whose function is to bring and represent the charge in the court according to the provisions of the CrPC[1], cannot bring any charges. This is related inextricably with the other condition that we have to be before the same criminal offence for which the alternative measure of diversion from the criminal prosecution is implemented.

       

      1. The phrase in paragraph 2 of article 70 “The prosecutor shall decide to dismiss the proceedings immediately” stipulates imperatively that the prosecutor decides fast, without wasting time and without delays to dismiss the proceedings if it results and it is verified that the child has fulfilled the obligations according to the diversion agreement. As no time frame is determined for the prosecutor to decide on the dismissal of the case, the legislator has used the phrase immediately determining it as a rule favourable for the child, conditioning the prosecutor to proceed with the decision for the dismissal of the case immediately after the fulfilment of the obligations foreseen in the measure of diversion. The competence of the prosecutor to decide on the dismissal of the case is regulated by article 328 of CrPC. The institution of dismissal according the CCJC has another dimension. Thus, firstly article 328 of CrPC ranks some situations that leads to the dismissal of the charge or the case related with the termination of preliminary investigations, where is proceeded only for the termination of the investigation. However, for cases regarding minors, according the rules of CCJC, dismissal of case as institute of the criminal procedure is applicable also for crimes. These provisions can be found in article 55 of CCJC.[2] Secondly, by mentioning this, can be clearly understood what is listed in the paragraph 1 letter ‘f’ of article 328 of CrPC where is foreseen the dismissal of the case “in other cases provided for by the law” that does not mean in an exhaustive manner the adjustment of the institution of dismissal according CCJC. The discretion of the prosecutor for the dismissal of the case can be considered in connection to article 61 paragraph 2 of this Code. In the article 61 of CCJC[3], where is foreseen the discretion of the prosecutor for the dismissal of the case if the child fulfils the obligations rendered in the diversion measure.

       

      1. The third paragraph of article 70 of the CCJC provides for that if the child fulfils completely the obligations rendered as a consequence of the implementation of the measure of diversion from the criminal prosecution, he shall not be considered as a person sentenced for a criminal offence and shall be not treated as a person with criminal records. This approach is in compliance with the fact that no charges are brought against him and that the prosecutor has decided to dismiss the case. Consequently, after the child in conflict with the law fulfils the obligations of the alternative diversion measure, he is not sent for adjudication to the court. This action does not confront him with a trial, intending to reintegrate and re-socialize him.

       

      1. Paragraph 4 of this article provides for that the competence for the realization and the supervision of the diversion measure from the criminal prosecution belongs to the Probation Service in compliance with the mediation service. The Probation Service operates based on law no. 8331 dated 21.04.1998 “On the execution of the criminal decisions”, amended with law no. 10024 dated 21.11.2008. Based on this law, the regulation “On the organisation and the functioning of the probation service and on the determination of the standards and procedures, for the supervision of the alternative sentence execution” adopted with decision no. 302 dated 25.03.2009 of the Council of Ministers. The Mediation Service operates and is based on law no. 10385, dated 24.2.2011 “On mediation in dispute resolution”.

       

      [1] See article 24 paragraph 1 of the CrPC “Functions of the prosecutor”, amended with law no.8460, dated 11.2.1999, amended with law no.8813, dated 13.06.2002, amended with law 35/2017.

      [2] According article 55 of CCJC, 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.

      [3] According article 3 paragraph 23 of CCJC “Diversion” is the alternative measure for non-initiation, suspension or dismissal of criminal proceedings against the child in conflict with the law, according to the provisions of this Code; See the comment of article 61 where is clearly stated that the prosecutor may decide suspending investigation in order to apply diversion conditionally, if the child fulfils the obligations the prosecutor may decide to suspend the criminal proceedings.

      1. It is the first time in the Albanian legislation that such a regulation as that of Article 70 of CCJM is provided for at the level of a Code, thus setting out procedural steps to render a decision which comes as a consequence of the fulfilment of the obligations after the implementation of the diversion measure from the criminal prosecution against the child in conflict with the law. More specifically, the Criminal Procedure Code approved by the law no 7905, dated 21.3.1995, as amended, by law no 8460, dated 11.2.1999, by law no 8813, dated 13.6.2002, by law no. 9085, dated 19.6.2003, by law no 9276, dated 16.9.2004, by law no 9911, dated 5.5.2008, by Decision of 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 before the adoption of the CCJC.

       

      1. 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.

       

      1. 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.[1]

       

      1. Considered in accordance with the Criminal Code, this provision that is decided by the prosecutor cannot be considered as equal or similar with article 52 of Criminal Code, which is about 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. As it is clarified in the historical part of the comment of article 61 of CCJC. The measure of diversion from the criminal prosecution according article 55 of CCJC is a novelty.[2]

       

      [1] See the respective comment of article 61 of CCJC.

      [2] The measure of diversion from the criminal prosecution according article 55 of CCJC that is 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.

      1. 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.

       

      1. 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. [1]

      Link: http://archivio.transnazionalita.isfol.it/file/CoE_Rec_R87-20%20Eng.pdf. Last accessed on 17.08.2017.

       

      [1] Further see comment of article 61 CCJC regarding the parts important to be recognized and the effect of this recommendation.

  • Reports, opinions, recommendations and declarations

    • “Convention on the Rights of the Child” being approved by the General Assembly of the United Nations Organisation on 20 November 1989.
    • UNO Instructions on Preventing Juvenile Delinquency (Riyadh Instructions)
    • 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.

               

    American Department of Justice Office of juvenile justice and crime prevention. National Justice Institute (Cases and practises) 

    1. According to the study analysis of the cases and the practises in different countries in the USA summarized in Juvenile Diversion Guidebook Prepared by the Models for Change Juvenile Diversion Workgroup it results that:

    “Dallas Front-End Diversion Initiative Texas Overview:

    The Dallas Front-End Diversion Initiative (FEDI), established in 2009, serves Dallas County, Texas. It is operated and funded by the Dallas County Juvenile Department (county juvenile corrections) and overseen by the Texas Youth Commission. FEDI is a non-judicial, early-intervention program that strives to assist youth in becoming productive, law-abiding citizens, in an effort to prevent their further penetration into the system. Target Population: The program targets first-time, low-risk offenders, 10–17 years of age that have not been charged with a status, serious, or aggravated offence. FEDI targets youth with unmet mental health needs, although it is not a requirement. A youth is diverted at intake, and does not have to admit to the charges against him/her to be eligible for the program. Caretaker consent/involvement is mandatory for program participation. Program Description: Once referred into the program, screening and assessment is done to determine the youth’s mental health, substance abuse, and risk needs; this information is used for determining eligibility and service planning. A Probation Officer oversees the provision of services (provided by direct service or through referral), which may include substance abuse and mental health treatment services, mentoring, family counselling, educational assistance programs (school/job placement), caregiver respite/support, life skills training, assistance in obtaining Medicaid, parenting classes, and support groups for caretakers of youth with disabilities. Youth are required to participate in services and abstain from new arrests. Failure to complete or follow the program requirements may result in a warning, filing of a petition, temporary detention, increased frequency or intensity of monitoring, and unsuccessful discharge from the program. Upon successful completion of the program, the youth’s record is expunged, and charges are dropped. The average length of program participation and maximum length of participation is 6 months. Of the 55 participants who started and were discharged from the program between February 1, 2009, and January 31, 2010, five percent (3) had a new referral at 30 days; 18% (10) at 90 days; and, 24% (13) at 6 months.

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

     

    1. Ogle County Balanced and Restorative Justice Program Illinois Overview:

    “The Ogle County, Illinois Juvenile Justice Council oversees the Balanced and Restorative Justice (BARJ) program. Established in 2008, the mission of this program is to “protect the community from crimes committed by minors through the promotions, establishment, education, and interagency coordination of community-based programs for families and minors designed to prevent unlawful and delinquent behaviour, incorporating principles of the BARJ model which holds each youth accountable for his or her behaviour.” The program is operated through the Ogle County Probation Department and the Ogle County Juvenile Justice Council. Target Population: The program targets Ogle County youth ages 10–17 who are first-time offenders. Youth can be referred to the BARJ Program at their initial contact with law enforcement, at petitioning, or at the time of case processing review (juvenile arrest reports are reviewed twice a month). Program Description: Once diverted, youth gain access to a variety of services which may include mentoring, family counselling, mental health or substance abuse treatment services, educational assistance, and life skills training. A BARJ Coordinator oversees the provision of services to the youth. A contract is made for the youth, which requires the completion of certain conditions. These may include: an apology letter to the victim; a victim-offender conference; accountability worksheets; community service; and the payment of restitution. Failure to adhere to the terms of their agreement may result in the youth’s discharge from the program and the filing of a petition. Program involvement typically lasts between 3–6 months. In 2009, approximately 188 youth were diverted to the BARJ Program and successfully completed the terms of their program”.

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

  • 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 Systemhttp://www.reformanëdrejtësi.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.reformanëdrejtësi.al/sites/default/files/relacioni-1.pdf , 

    Decision of the Parliament No.97/2016, the packet of 27 draft-laws. http://www.reformanëdrejtësi.al/sites/default/files/relacioni-1.pdf , November 20, 1989. 

    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”

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

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

    Criminal Code of Republic of Albania article 12, article 52, article 46. 

    Code of Criminal Procedure of the Republic of Albania, article 24, 328.

     

    1. Law No. 10385, dated 24.2.2011, “On mediation in dispute resolution”, provides for the procedure for mediation in the criminal process in articles 14, 23, paragraph 1 and 2. Article 14 provides for as follows: “Procedure on mediation in criminal proceeding 1. 1. The court, in line with articles 333 and 338 of the Code of Criminal Procedure shall invite the parties to settle through mediation the dispute which is subject to proceedings, foreseen in article 2, paragraph 3 of this law, by setting a deadline to the parties in line with the nature of the dispute. 2. Each party has the right to ask for the re-institution of the proceedings at any time.” Article 23, “Execution of mediation agreement 1. Where the case is referred for mediation by the court, the mediator, by the end of the mediation procedure, or within the time limit specified by them, shall notify them regarding the resolution or non-resolution of the dispute, through the submission of the respective acts. 2. If the case is settled through mediation, the judicial bodies shall decide, accordingly, the approval of the amicable agreement on the civil case or the dismissal of the criminal case, or the non-institution of the criminal proceedings, except for the case when invalidity is noticed.” Article 1, paragraph 1 and paragraph 3 of law 10385/2011 provides for as follows: “The mediators are not entitled to order or compel the parties to accept the resolution of the dispute.” In addition, article 10 of the same law lists even the duties of the mediator. More concretely, paragraph 3 provides for as follows: "3. The mediator shall exercise his/her profession, with impartiality, honesty and professionalism, shall respect the rules of professional ethics and shall use all the legal means for the fair resolution of disputes.

    http://www.drejtësia.gov.al/files/userfiles/Komisioni_i_licensimit/Ligji_nr_10385_dt_24.02.2011.pdf Last accessed on 25.08.2017.

     

    1. Law no.8331 dated 21.4.1998 “On the execution of the criminal decisions”, article 9 and article 31/9 and Law No.10024, dated 27.11.2008, “On some amendments and addenda in Law No. 8331, dated 21.4.1998 “On the execution of the criminal decisions”, provide for that the prosecutor is compelled to take all the measures for the execution of the decision in compliance with the orders of the court and shall control the adequacy of the execution of the decision. Therefore, when the court judges to suspend the decision with imprisonment and to replace it with an alternative sentence, it sends the decision to the prosecutor right away. The prosecutor cooperates with the Probation Service, which according to the new amendments in the criminal legislation is established as the state body whose responsibility is to supervise the enforcement of the alternative sentences. The Probation Service submits information and reports to the prosecutor or the court and assists in the execution of the alternative sentence. In addition, it is in charge of assisting the sentenced person to overcome the difficulties for the social reintegration.

    http://www.pp.gov.al/web/ligji_per_ezekutimin_e_vendimeve_penale_i_perditesuar_1035.pdf,   Last accessed on 25.08.2017.

     

    1. REGULATION “ON THE ORGANISATION AND FUNCTIONING OF THE PROBATION SERVICE AND ON THE DETERMINATION OF THE STANDARDS AND PROCEDURES, ON THE SUPERVISION OF THE ALTERNATIVE SENTENCES” ADOPTED WITH DECISION No. 302, dated 25.3.2009 of the CoM. The regulation is composed by 61 articles. It is divided into three parts. The last title is about the standards of observing the convicts in the community. The last title of the regulation refers to the principal activity of the probation officers, that is observing the convicts in community by applying the decisions of the courts regarding alternative imprisonment. At the same time, this title regulates another principal function of the probation service, i.e. to draft and present to judges and prosecutors’ evaluation reports for the detained in different phases of the criminal justice process.

    http://www.sherbimiproves.gov.al/images/pdf/1_Rregullore_Shp.pdf

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

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

     Office of Juvenile Justice and Delinquency Prevention

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

    Justice System Analysis

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

    Link: 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 of the member states on the European Rules for the child convicts

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

    TRAINING MANUAL FOR THE PROFESSIONALS WHO WORK WITH THE CHILDREN IN THE PENITENTIARY SYSTEM

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

    http://www.pp.gov.al/web/ligji_për_ezekutimin_e_vendimeve_penale_i_përditesuar_1035.pdf,  Last accessed on 25.08.2017.

    http://www.drejtësia.gov.al/files/userfiles/Komisioni_i_licensimit/Ligji_nr_10385_dt_24.02.2011.pdf Last accessed on 25.08.2017. 

    http://www.sherbimiproves.gov.al/images/pdf/1_Rregullore_Shp.pdf

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Elina Kombi
Arta Mandro, Koraljka Bumči