Table of Content

• Comments
  • Purpose
    1. The purpose of Article 83 of the CCJC is to provide for comprehensive rules for one of the security measures such as placing the child under supervision stipulated by the CCJC only for children in conflict with the law. 

     

    2. Article 83 intends to provide in an all-inclusive way the meaning of placing the child under supervision; the involved competent authorities and the rights and the obligations of the supervising person/subject and of the child under supervision; the way of enforcing the measure of placing a child under supervision; the consequences of failure to fulfil the obligations rendered towards the child who is suspected of having committed a criminal offence in the phase of the preliminary investigations, when it is counsidered to“placing the child under supervision”.
  • Scope
    3. Article 83 of the CCJC is composed of eight paragraphs which follow each other in a logical way from the meaning of placing a child under supervision to the situations which may cause the failure of this measure and the potential legal solutions to it. 

     

    4. The first paragraph of Article 83 of the CCJC provides the meaning of the security measure of placing the child under supervision. According to this paragraph, when a child is under supervision, as he/she is suspected of having committed a criminal offence, he /she shall be present before the proceeding body, whenever that is required. The norm explains the meaning of the proceeding body, which according to this article, may be the judicial police officer, the prosecutor or the court respectively, according to the realization of the procedural actions during the investigation phase.  This security measure is implemented by the supervising person, who takes the responsibility to present the child before the proceeding body when required and decided.  

     

    5. According to the phrase “only upon the consent of the child and of the person who will supervise him”, the second paragraph of Article 83 underlines that this security measure is assigned by the court and requires the consent of both, the child and the supervising person. Both shall give their consent for placement. 

     

    6. Paragraph 3 up to paragraph 8 of Article 83 provides for the way how this security measure shall be enforced and the consequences in case it is fulfilled or not, namely the substitution of the supervising person or the substitution of the security measure.
  • Comments
    7. Article 83 paragraph 2, explains the meaning of the security measure of placing the child under supervision. More concretely, this measure, as any other security measure is used during the investigation phase according to the conditions provided for in Article 228 of the Criminal Procedure Code (CPC) and the criteria provided for in Article 229 and 230 of the CPC on security measures. It is based specifically on the special criterion related to the child according to paragraph 3 of Article 229 of the CPC which stipulates that when the defendant is a child, the court considers his best interest, according to the meaning of paragraph 9, Article 3 of the CCJC and the request not to interrupt the concrete educative processes.  Similarly, to the other security measures, placing the child under supervision is an alternative to the measure of detaining or arresting the child, in the best interest of the child allowing for the continuation of his/her educational, psychological, mental process in the environment where he/she lives.  This is an already recognized standard in the international instruments such as paragraph 80 of Comment 10 of the Committee of the Rights of the Child[1] or paragraph 13.2 of the Rules on the minimal standards of Justice Administration for Children (Rules of Beijing)[2], as well as paragraph 45 of the preamble of Directive 2016/800/EU[3].

     

    8. Placing the child under supervision guarantees his/her presence any time the child is required to be present for the realization of the investigation before the proceeding bodies, listed in Article 83 itself: the judicial police officer, the prosecutor or the court.

     

    9. The supervising person or institution is assigned for the enforcement of this security measure. It may be the parent or the relative of the child, which means, according to paragraph 8, Article 3 of the CCJC, the person who has close family, blood or marriage relations with the child, according to Article 16 of the CCJC, namely 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). This article provides for an institution or person specialized in this duty as well. These institutions are those competent bodies which are to be established for the enforcement of Article 83 of the CCJC according to the transitory provision Article 140 paragraph 6 of the CCJC within January 1, 2019.  At the same time, the supervising person or institution, respectively, shall undertake to guarantee the presence of the child before the proceeding body as well as the supervision of the behaviour of the child during the security measure in compliance with the necessity for the security of the child and the minor and if the child respects the obligations which are stipulated by the security measure.

      

    10. This measure is ordered by the court only if the child and the person who supervises him/her give their consent, which means that they agree with the measure. Article 83 respects the right of the child to be heard regarding the security measure which will be ordered, which shall be in any case in accordance to the principle of the best interest of the child. This is in compliance with the standard stipulated in paragraph 45 of Comment 10 of the Committee of the Child’s Rights[4] and in the provisions of the CCJC related with the information given and the participation.

     

    11. The security measure of placing the child under supervision has obligations for the child as well as for the supervising person. More concretely, these obligations are related to [a] the presence of the child before the proceeding body any time the latter requires his /her presence, and [b] during the time the child is under the supervision he/she is compelled to behave in a correct way. This means that the child shall not violate by actions or omissions the sense and the conditions of the security measure, and causing, this way, an increase of his/her social dangerousness.  So, the child shall behave correctly according to age and moral and ethical norms.  These obligations of the child are accompanied by the obligation of the supervising person to supervise and enforce the security measure with the intention to fulfil these obligations. This is provided for in paragraph 3 of Article 83.

     

    12. Waiving the supervision and the substitution: In case that the supervising person cannot realize the supervision, and [a] does not guarantee the presence of the child every time he/she is asked to be present before the proceeding bodies or [b] does not guarantee the child’s correct behaviour, he/she may withdraw any time and in this case the supervising person will be substituted. Waiving supervision is an action that is done unilaterally by the supervising person for grounds which do not depend on him/her or which cause an impossibility for him/her to realize the supervision.

      

    13. Supervision failure and substitution: On the other hand, according to paragraph 5 of Article 83, in case the supervision fails, and the child does not fulfil the obligations mentioned in paragraph 1 of Article 83, as the supervising person cannot realize the supervision, this shall be verified by the court:

    1. If this failure for supervision occurs for objective reasons, the court decides to substitute the supervisor.   The phrase “objective grounds” means circumstances that do not depend on the supervising person, the latter having made all the attempts to realize the supervision, but the child fails to fulfil the obligations due to independent reasons from him/her. In this case, the court, according to paragraph 8, Article 83, may decide to substitute the security measure concerning the child evaluating the importance, the motives and the circumstances for violating the security measure, pursuant to Article 231 of the CPC and Article 260 paragraph 3 of the CPC.
    2. If the security measure fails to be executed due to the actions or omissions of the supervising person, the court orders the punishment of a fine up to 20,000 Leke.  This order shall not be appealed.  In this situation, the court decides as well on the substitution of the supervisor or the substitution of the security measure concerning the child, as appropriate.  In this case, the court shall evaluate the importance, the motives and the circumstances that caused the violation of the security measure according to Article 231 of the CPC and Article 260 paragraph 3 of the CPC. 

     

    [1] See this document at:  http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf

    [2] See this document at: http://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf 

    [3] See this document at: http://eur-lex.europa.eu/legal content/EN/TXT/PDF/?uri=CELEX:32016L0800&from=EN N

    [4] See this document at: http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf

     

  • Historic context
    14. This provision constitutes a novelty in the Albanian legislation. The security measure for placing the child under supervision was not recognized and consequently it was not stipulated in the procedural law.
  • International acts
    15. In the international aspect, a series of instruments have foreseen and established the standard for the determination of security measures that do not affect the process of the education and the development of the child in conflict with the law, foreseeing alternative security measures of controlling the behavioural developmentthe child. Some of the international documents which foresee the above standards are as follow:

     

    16. The General Assembly of the UNO, the Convention of the Rights of the Child, November 20, 1989, article12 underlines that: “1. The States Parties guarantee to the child, who is capable of having his viewpoints, the right to express these viewpoints freely, for any case related to him, evaluating them in compliance with his age and level of maturity. 2. For this reason, the child is given the possibility to be heard in the judicial or administrative procedure, related to him, either directly through a representative or an appropriate body, in compliance with the rules of the procedure of the national legislation”.

     https://www.unicef.org/tfyrmacedonia/CRC_albanian_language_version(3).pdf last accessed on September 25, 2017

     

    17. The Committee on the Rights of the Child said in its General Comment no. 10 “The rights of children in criminal justice” “The child should be given the opportunity to express his/her views concerning the (alternative) measures that may be imposed, and the specific wishes or preferences he/she may have in this regard should be given due weigh...”

    http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf last accessed on September 25, 2017. 

     

    18. The General Assembly of the UNO, in the Rules of Beijing (Rules on the minimal standards of Justice Administration on Children), resolutions 40/33, November 29, 1985, paragraph 13.2 undelines that “Whenever possible, detention pending trial shall be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home.” 

    http://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf last accessed on September 25, 2017

     

    19. The European Parliament and Council, Directive 2016/800/EU “On the procedural protective measures for the suspected or accused children in the criminal procedure”, May 11, 2016, paragraph 45 of the preamble “(45) Children are in a particularly vulnerable position when they are deprived of liberty. Special efforts should therefore be undertaken to avoid deprivation of liberty and, in particular, the detention of children at any stage of the proceedings before the final determination by a court of the question whether the child concerned has committed the criminal offence, given the possible risks for their physical, mental and social development, and because deprivation of liberty could lead to difficulties as regards their reintegration into society. Member States could make practical arrangements, such as guidelines or instructions to police officers, on the application of this requirement to situations of police custody. In any case, this requirement is without prejudice to the possibility for police officers or other law enforcement authorities to apprehend a child in situations where it seems, prima facie, to be necessary to do so, such as in flagrante delicto or immediately after a criminal offence has been committed.”

    http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016L0800&from=EN N last accessed on September 25, 2017.

• International standards/International references/Best examples
  No Comment
• Legislative material
  No Comment
• Related articles

  Article 3, paragraph 9 of the CCJC provides that:

  “Best interest of a child” means the right of the child to a healthy physical, mental, moral, spiritual, social development and the right to enjoy family and social life suitable to the child.

  Article 228 of the CPC provides for that: 

  1. No one may be subjected to personal precautionary measures unless there exists a reasonable suspicion against him, based on evidence.
  2. No measure can be applied if there are reasons for impunity or extinction of the criminal offence or of the penalty.
  3. Personal precautionary measures shall be adopted:
  4. a) when important reasons exist that put in danger the obtainment or the authenticity of evidence, based on factual circumstances that must be expressly set out in the reasoning of the decision;
  5. b) when the defendant has fled or there is a risk that he might do so;
  6. c) when, by reason of the particular circumstances of the fact and of the defendant’s character, there exists the risk that he would commit serious criminal offences similar to the one he is being prosecuted for. 

  Article 229 of the CPC provides for that: 

  1. In establishing any precautionary measures, the court shall consider the suitability of each of them with the level of precautionary needs in the actual case.
  2. Each measure must be proportionate to the seriousness of the facts and to the sanction foreseen for the concrete criminal offence. The continuity, repetition and as well mitigating or aggravating circumstances provided for by the Criminal Code shall also be considered. A pre-trial detention measure cannot be ordered if the court deems that, for the crime committed, a conditional sentence could be issued.
  3. If the defendant is a minor, the court shall consider his/her best interest and the request for an uninterrupted concrete educational process. 

  Article 230 of the CPC provides for that: 

  1. Pre-trial detention may be ordered only when all other measures are found inadequate because of the particular danger of the criminal offence and of the defendant.
  2. Pre-trial detention cannot be ordered against a woman who is pregnant or has a child under the age of 3 years living with her, a person being in a particularly serious health state or who is older than seventy years or a drug-addicted or alcoholic person, who is undergoing a therapeutic programme by a special institution.
  3. In the cases referred to in paragraph 2, pre-trial detention may be ordered only where there are reasons of a special importance and for crimes, which are punishable not less than ten years’ imprisonment in the maximum term.
  4. Minors accused of a criminal misdemeanour may not be arrested. 

  Article 231 of the CPC provides for that:

  In case of breach of the obligations concerning a precautionary measure, the court may order its replacement or joining with another more severe precautionary measure, considering the seriousness, reasons and circumstances of the breach. For the breach of obligations related to an interdicted measure, the court may decide its replacement or joining with a coercive measure.

  Article 260 paragraph 3 of the CPC provides for that: 

  If the security needs increase or the person infringes the obligations related to the precautionary measure, the Court, upon request of the prosecutor, may replace it with a more severe measure or order an additional coercive or interdictive precautionary measure. If obligations related to an interdictive measure are violated, the court may replace it with a coercive measure or impose an additional interdictive measure.  

• Sublegal acts
  No Comment
• Decisions
  No Comment
• Literature

  Study: “Juvenile justice in Albania, an analysis of the administration system on juvenile justice and on the situation of the children in conflict with the law in Albania”, provided by UNICEF, with the support of the European Commission and Sida. 

  http://www.crca.al/sites/default/files/publications/Drejtesia%20per%20te%20mitur.pdf last accessed on September 16, 2017

• Archive
  No Comment