Table of Content

• Comments
  • Purpose
    1. The purpose of Article 76 of CCJM is ensuring, on the one hand, the fundamental procedural right to a due process, that the offending minor is entitled to in the sense of Article 3, par 4, of CCJM in the course of interrogation by way of guaranteeing the right to be heard, as well as having by the proceeding authority (which as appropriate is the judicial police, prosecution office and court) the effective administration of justice ensured, in addition also the issue of obtaining data from the minor being accused of having committed a criminal offence. The provision of Article 76 attains the objectives referred to above by way of setting out rules and standards which have to be applied by the proceeding authorities while interrogating the offending minor, by way of observing the principle of the best interest of the minor, which has been provided for in a series of international instruments, such as Article 3 of the Convention of the Rights of the Child, being approved by the United Nations Organisation General Assembly on 20 November 1989.

     

    2. The scope of Article 76 of CCJM is setting out procedural rules in the interrogation of the offending minor while guaranteeing the international standards being set out in order to have the best interest of the minor observed.
  • Scope
    3. Article 76 has been structured into seven paragraphs. In the first six paragraphs of this Article there are procedural rules that are applied by the proceeding authority for interrogating the minor to the effect of protecting the dignity, corporal and mental integrity, as well as his/her appropriate intellectual development, by way of imposing the obligation to the proceeding authorities to simultaneously apply the international standards in this respect, in compliance with Article 6 of CCJM. Meanwhile, in the last paragraph, i.e., the seventh one, the article generally refers to the implementation of the rules for interrogating the defendants being provided for in the Criminal Procedure Code (CPC) during the interrogation of the minor, as long as these rules do not run counter to the principles being established in the CCJM and which should be taken into account of in the administration of the justice cases for minors. This paragraph of this Article is in compliance with Article 5 of the CCJM, the latter providing the relationship of this Code to other laws.
  • Comments

     

    4. Essence of Article 76: As it turns out from the analysis of the content, Article 76 of CCJM establishes procedural rules and principles which should be applied in the course of interrogating the offending minor by the proceeding authority, i.e., the court, prosecution office and judicial police. Bound to this Article shall be the minor having reached the age of criminal liability up to 18 years of age, wherefore a grounded suspicion exists that they have committed a criminal offence has been taken as defendant and/or has been convicted by a final decision in connection with the commission of a criminal offence. Thus, the offending minor in the sense of Article 3, par 4, of CCJM.. Questioning of the minor defendant, as foreseen in article 361/a of CPC or provisions of article 39 of this Code, is different from questioning the minor victim . The reason for this difference is that the victim may be under the age of criminal responsibility.

     

    5. Application of international standards: The provision of Article 76 requires the proceeding authority to implement a series of international standards for interrogating the minor, being provided in a series of international instruments, such as the Convention on the Rights of the Child approved by the United Nations Organisation (UN) General Assembly dated 20 November 1989, Beijing Rules “Rules on minimum standards of Justice Administration for Minors’, approved by the UN General Assembly, by the Resolution no 40/33, dated 29 November 1985 or the Directive no 2016/800 approved by the European Parliament and the Council “On procedural safeguards for children who are suspects or accused persons in criminal proceedings’, dated 11 May 2016[1] etc., in compliance with the provisions of Article 6 of the CCJM. Thus, from such perspective, the proceeding authority has, on one hand, to guarantee the protection of the offending minor and on the other hand observe the due process regarding the interrogation of the minor in the course of administering the current case.

     

    6. The rules and standards contained in Article 76 require the proceeding authority involved with the interrogation of the offending minor, on one hand, to carry out concrete action and, on the other hand, it shall be prohibited to carry out certain actions, thus, ensuring the best interest of the minor and observing the right to due process during the entire procedure. The rights provided from this article shall be seen in compliance with respective articles of CPC like for example article 34/a. This means that this provision is the one to be applied exept for the fundamental rights for the adult defendant. According to para. 3 of Article 38 of CPC, the proceeding body, before questioning the minor, should make sure that the minor has understood his rights, the right to express himself and to be heard and also the right to remail silent. The declarations of the minor can be used in the proceeding only if this procedure is followed correctly. According to Article 123 of CPC, the proceeding body shall provide a translator for the minor in conflict with the law if the minor does not speak the Albanian language. This is also in compliance with international standards like article 40, letter b, subpara. vi of the Convention on the Rights of the Child.

     

    7. Specifically, rules taken into account in the course of interrogating the offending minor, are: 

    1. According to paragraph 1 of Article 76, the proceeding authority for interrogating the juvenile should guarantee the right of the juvenile to be heard and to express his own opinion and views regarding the criminal actions or omissions whereof he is suspected of having committed, such being a fundamental right of the due process provided in Article 6 of the European Convention of Human Rights. This legal provision should be abided by during the entire stages of the criminal proceedings from the preliminary investigation to the end of the adjudication, as well as in the issues during the stage of the enforcement of the criminal decision.
    2. According to paragraph 1 of Article 76, the proceeding authority a) shall guarantee the application of rights of the child to remain silent and this means that they shall not provide explanations regarding the charge, and b) to observe the right of the minor not to self-incriminate, thus not to make any statements on pleading guilty. In this sense, according to paragraph 3 of this Article, any form of physical and/or psychological maltreatment shall be prohibited, thus, any type of violence, physical or psychological during the interrogation to the effect of obtaining information, this being in compliance with Article 54, paragraph 3, of the Constitution and Article 3 of the European Convention of Human Rights.  These rights should be abided by during the entire stages of the criminal proceedings from the preliminary investigation to the end of the adjudication.
    3. According to the second paragraph of Article 76, the proceeding authority shall, in the course of interrogation, treat the child with dignity, despite the reasonable doubt existing against the juvenile that they have committed the criminal offence and they have been taken as a defendant. If there is any doubt for the age of the minor, it shall be supposed that, according to article 41 para. 2 of CPC or article 3 para. 4 of this Code, the person is a minor[2].  
    4. Where the minor in conflict with the law is subject to the interrogation during the proceedings, there is a possibility that they experience ordeal or feel distracted or embarrassed. This is the reason why the questions should be drafted in the appropriate way in order for the proceeding authority to minimise these concerns and alleviate some of the difficulties that the offending child is facing with. Thus, according to paragraph 4, Article 76, the contents of these questions should be such that they ensure facilitation of giving testimony, eliminating fear and hesitation that the juvenile has in the proceedings. In order to achieve this, the proceeding authority consults the psychologue regarding the contents of the questions and method of interrogation. Specifically, while interrogating the minor, it should be taken into account that a) questions have to be put in a sequence and not more than a question should be in a sentence; b) short, simple sentences have to be used being appropriate and comprehensible referring to the age and development of the minor; c) open questions have to be used at the very beginning, sparking narrative answers and provide the possibility to the child to recall as many details and information as possible about the event and subsequently specific questions have to follow, as long as the appropriate information has not been obtained from the open question, as well as ç) overloaded questions, impressing questions and frequent questions starting with ‘why’ have to be avoided; questions that might project and express thoughts of the minor, that cast doubts on the minor’s statements, or generalizing questions that can lead to invalid answers.  
    5. According to paragraph 5 of Article 76 of CCJM, the interrogation of the minor shall occur in the presence of the defence lawyer and psychologue, and if the juvenile grants their consent, the legal/procedural representative may be present,(Article 3 par 16 of CCJM) Article 3 par 17 of CCJM]. CPC, Article 35, also foresees that the minor defendant is interrogated in the presence of a psychologue. CCJM does not provide for the consequences in the event of failing to comply with this provision, i.e. non-participation of the defence lawyer and psychologue during the interrogation of the minor. However, referring to Article 128, paragraph 1, letter c, of CPC, which is not the only provision because we also have article 49, para. 1 a) this is clear and understandable that it is always an absolutely invalid action if the defence lawyer is not present. However, according to Article 129, if the psychologue is not present, this can be considered/seen as a relative invalidity. This legal regulation is also in compliance with the legal practice of the European Court of Human Rights, where in the case Salduz against Turkey (2008), which has evaluated the participation of the defence lawyer in the proceedings pertaining to the juvenile, who in this case was in remand imprisonment, of fundamental importance.  
    6. Additionally, based on para 2 of Article 76, international standards have to be guaranteed in the interrogation of juveniles with disabilities. Specifically, defence has to be ensured to them, by way of surpassing the difficulties that emerge from his limited capability according to the provisions of Article 13 and 7 of the UN Convention ‘On the rights of Persons with Disabilities and Optional Protocol’[3] of December 2006 and Article 4, letter ‘ç’ to ‘ë’ of the Law no 93/2014 ‘On involvement and accessibility of persons with disabilities’.

     

    [1] This Directive may be accessed under: http://eurlex.europa.eu/legalcontent/EN/TXT/?uri=CELEX%3A32016L0800

    [2] According to the international standards provided for instance in the Guide and Explanatory Memorandum ‘On Child friendly Justice’, being approved by the Committee of Minister of the Council of Europe on 17 November 2010, the proceeding authorities shall take account of that during the entire procedures the children have to be dealt with respectfully regrading their age, their specific needs, maturity and level of understanding, thus taking account of any eventual communication difficulty. 

    [3] Article 13 Access to justice authorities: 1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. 2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff; Article 7 Children with disabilities: 1 States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children. 2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. 3. States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.

  • Historic context
    8. There were contained earlier in the Albanian legislation rules regarding the interrogation of the offending juveniles, which had to be given effect in the presence of the defence lawyer, parent and psychologue, according to Article 35 of CPC. At the same time, there was provided for the right to remain silent according to Article 38 of CPC in the context of the rights to a fair process that the person being bound to the suspicion or the accusation of having committed a criminal offence is entitled to. In the meantime, Article 76 of CCJM provides for the first time detailed rules and explicitly imposes the obligation to abide by the international standards, bringing a novelty in this respect. Specifically, the provision in Article 76 on the way of preparing the questions to be addressed to the juvenile, the questions being prepared and drafted with the assistance of the psychologue, was not provided for earlier in the criminal legislation. The psychologue was earlier present in the judicial practice and implementing the previous legislation referred to above during the interrogation of the minor. However, he was not involved in wording the questions, becuase such procedural right was up to the proceeding authority. At the same time a novelty consists in the explicit provision on the way of giving effect to the procedure of interrogation in order to facilitate making statements, by way of eliminating fear, hesitation and anxiety to the criminal proceedings.
  • International acts
    9. In the international aspect, a series of instruments have provided for and set the standard that the offending juveniles are entitled to be heard and express themselves, as well as the right to remain silent and not to self-incriminate. According to these instruments, there have been established rules on the way of conducting the interrogation of the juvenile in order to give effect to the protection of the best interest of the juvenile. Some of the international documents providing for the above standards areas follows:

     

    10. The General Assembly of UN, Convention on the Rights of the Child, 20 November 1989, Article 3/1 provides for: ‘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].’

     

    11. The Committee on the Rights of the Child, UN, General Comment no 10 (2007), “On the rights of the child in the justice system for juveniles” in paragraph 12 highlights that “The right of the child to express his/her views freely in all matters affecting the child should be fully respected and implemented throughout every stage of the process of juvenile justice (see paragraphs 43-45 below)[2]. 

     

    12. UN General Assembly, Beijing Rules “Rules on the minimum standards for the administration of Justice for Juveniles”, Resolution 40/33, 29 November 1985, Rule 7.1 “Rights of juveniles”[3]

     

    13. The Committee of Ministers of the Council of Europe, Recommendation (2003)20 “On other ways of treating the offending juveniles and the rule of justice for minors” 24 September 2003[4].

     

    14. The European Parliament, Council and European Commission of European Union, Charter of Fundamental Rights, 2000, in its Article 24 highlights that” “2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration”[5].

     

    15. The European Parliament and the Council at the European Council, Directive 2016/800 “On the ensuring procedures pertaining to the children being suspected or accused in criminal proceedings” dated 11 May 2016[6] highlights in its par 29 of the

     

    16. United Nations Organisation, ‘Convention on the Rights of Persons with Disabilities and Optional Protocol’, December 2006.[7]

     

    [1] https://www.unicef.org/tfyrmacedonia/CRC_albanian_language_version(3).pdf visited for the last time on 31 August 2017

    [2]http://tbinternet.ohchr.org/_layouts/C%2fC%2fGC%2f10&Lang=en visited for the last time on 16 July 2017 

    [3] http://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf visited for the last time on 31 August 2017

    [4] https://www.crin.org/en/library/legal-database/concerning-new-ways-dealing-juvenile visited for the last time on 31 August 2017

    [5] http://www.europarl.europa.eu/charter/pdf/text_en.pdf visited for the last time on 31 August 2017

    [6] http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016L0800&from=EN visited for the last time on 31 August 2017

    [7] http://www.un.org/disabilities/documents/convention/crpd_albanian.pdf visited for the last time on 31 August 2017

• International standards/International references/Best examples
  17. Judgment of Grand Chamber of European Court of Human Rights, Saldus versus Turkey, dated 27/11/2008.[1]

   

  [1] http://hudoc.echr.coe.int/eng#{"itemid":["001-89893"]} visited for the last time on 31 August 2017

• Legislative material
  18. The Senior Experts Group at the Parliamentary Ad Hoc Committee on the Justice System Reform, Analysis of the Justice System in Albania, June 2015, highlighted that ‘4.4.8 Treatment of Minors. A special set of issues continued to be the treatment of juveniles. The strategy and action plan for the justice for minors have not been approved yet. There are no specific premises in the police stations for the children under 14 of age yet, and very often it is found out that the assistance of the psychologue when the child is interrogated during the evening hours, at the weekend or on the national holidays is missing.[1]’

   

  [1] http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf visited for the last time on 31 August 2017

• Related articles

  Constitution of the Republic of Albania, Article 54 para. 3: “Every child has the right to be protected from violence, ill treatment, exploitation and use for work, especially under the minimum age for work, which could damage their health and morals or endanger their life or normal development.” 

  Article 37, letter ‘c’ and ‘d’ of the Convention on the Rights of the Child.[1] 

  Article 50/b/iv of the Convention on the Rights of the Child.[2]

  Article 50/b/vi of the Convention on the Rights of the Child.[3] 

  Article 3, par 4, of the CCJM.[4]

  Article 35 of CPC.[5]

  Article 38 of CPC.[6]

  Article 4, letter ‘ç’ to ‘ë’ of Law No. 93/2014, dated 24/07/2014 ‘On involvement and accessibility of persons with disabilities’[7]

   

  [1] c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a maner which takes into account the needs of persons of his or her age.  In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

  1. d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

  [2] Not forcing them to testify and plead guilty; to be interrogated or make arrangements for interrogating the prosecution witnesses and ensure the presence and interrogating the witnesses of defence under equal circumstances.

  [3] To be assisted by an interpreter free of charge, as long as he does not under stand or speak the language being used.

  [4] Minor offender’ is every person having reached the age of criminal liability up to 18 years of age, wherefore a grounded suspicion exists that they have committed a criminal offence, has been taken as defendant and/or has been convicted by a final decision in connection with the commission of a criminal offence.”

  [5] 1. Legal and psychological assistance shall be provided to a minor defendant at any state and stage of the proceedings, in the presence of the parent, legal guardian or other persons requested by the minor and accepted by the proceeding authority.

  2. The proceeding authority may carry out actions and draft documents, which require the presence of the minor, in absence of the persons stated in paragraph 1, when this is in the minor’s interest or when the delay may seriously impair the proceeding, provided that it is always done in presence of the lawyer.

  [6] 1. If a person who is not taken as a defendant makes statements before the proceeding authority, that raise suspicion of guilt against him, the proceeding authority shall interrupt the questioning and warn him that, following such statements, an investigation may be carried out on him, and advise him to appoint a lawyer. Statements previously made by the person cannot be used against him. 

  [7] ç) guaranteeing accessibility by way of avoiding obstacles of all types;

  1. d) involvement, by way of which the appropriate and equal participation of persons of disabilities in made possible in all the spheres of life;
  2. dh) participation of persons with disabilities by way of individual consultation and active participation of persons with disabilities and their representative organisations, including the children with disabilities;
  3. e) approach in two directions in order to incorporate the rights of persons with disabilities to the maximum possible into the ordinary legislation and to restrict the issues to be dealt with separately to a minimum;

  ë) giving effect progressively, whereby the Government shall take measures for guaranteeing the involvement and accessibility of all persons with disabilities to the maximum level that the available resources provide for, while not inflicting the rights being obtained, which are in compliance with the Convention of UNO of the Rights of Persons with disabilities.

• Sublegal acts
  No Comment
• Decisions

  Decision No. 35 dated 09.03.2016 of the Criminal College of the High Court although it is not related to the minor, reflects the standards regarding the defense lawyer. 

  Regarding the recourse presented by the defendants "The High Court's Criminal College deems that the recourse of the defendants is based on the law in the following measure and manner; therefore, the Decision of the Court of Appeal for Serious Crimes, No. 40, dated 07.07.2009, should be quashed for serious violations of criminal procedural law.” 

  Concerning the allegation of the presence of the defense lawyer during the preliminary investigation phase for the defendant making statements, “the Penal College concludes that the claim of the defendants is grounded and must be admitted. The defendants were violated the right to have a defense lawyer and consequently the defense developed against them during the preliminary investigation as a whole, was not effective. Under these conditions, the Panel considers that Article 28 of the Constitution has been violated, according to which the person deprived of his liberty must be notified that there is no obligation for him to make any statement and that he has the right to communicate immediately with the lawyer, and he should also be given the opportunity to exercise his rights, Article 6 of the Code of Criminal Procedure, a fact that has influenced the award of the decision after the recourse.

• Literature
  No Comment
• Archive
  No Comment