Table of Content

• Comments
  • Purpose
    1. The purpose of Article 84 of the CCJC is to set the principles and grounds for placing a child to a specialized service. The specialized service, as provided in Article 82 of the CCJC, is a special precautionary measure, which is assigned to a child in conflict with law by the court. Such legal provision aims to maintain the balance between the need for precautionary measure, thus providing a precautionary measure to the child and guaranteeing the best interest of the child. For this purpose, the child is placed under supervision in special institutions, after it is estimated that for the specific circumstances the precautionary measure cannot be realized by the parents or relatives.

     

    2. The purpose of this Article is to provide the child with a specialized service that responds to his/her needs for rehabilitation and upbringing. The child will also be supervised concerning the fulfilment of the obligations as determined by the precautionary measure mainly related to the behaviour and the attitude of the child and avoiding his/her social risk.

     

    3. Article 84 intends to provide in general terms for of placing of a child to a specialized service, and for the competent authorities charged by law to carry out the specialized service. Regarding the way of organizing the functioning of the specialized service, the programs and their financing, the law provides for this regulation by a decision of the Council of Ministers.
  • Scope
    4. Article 84 of the CCJC consists of three paragraphs which provide (1) the conditions under which, placement of the child to a specialized service is assigned as a precautionary measure; (2) entities charged by law to carry out the specialized service; (3) approval of the sublegal provisions as above by the decision of the Council of Ministers
  • Comments
    5. Article 84, in its first paragraph, provides the conditions of the precautionary measure of placing a child in a specialized service. It should be noted that, like any other precautionary measure, placement of a child to a specialized service, is set up in support of the conditions provided in the Criminal Procedure Code (CPC) [Article 228, 229, 230 CPC]. It is particularly important that paragraph 3 of Article 229 of the CCP, provides that if the defendant is a child, the court shall consider his/her highest interest and the request for an uninterrupted concrete educational process. 

     

    6. Placing a child to a specialized service is, the similar other precautionary measures, an alternative to the measure of detention or arrest of the child, thereby guaranteeing the best interest of the child through the continuation of his educational, psychological and mental development. However, this precautionary measure is determined considering the concrete circumstances of the child as the supervision and attention that should be provided to the child during investigation and trial cannot be realized by parents or relatives. Concerning the definition of “close relative”, it is given in item 8 of Article 3 of the CCJC mentioning those persons who have close family, kin or in-law relations with the children. By analogy, concerning “close kin”, a more detailed meaning is foreseen given in Article 16 of the CPC. According to that article, such a person is the predecessor, the descendant, brothers, sisters, uncles, aunts, nephews, nieces, children of brothers and sisters. The same Article also provides the group of persons pertaining to close in-laws, such as father-in-law, mother-in-law, sister-in-law, brother-in-law, stepfather and stepmother. In this way, a child requiring special attention and supervision that is not guaranteed by parents or close relatives concerning the measure in question is placed to a specialized service.

     

    7. It should be highlighted again that placing a child to specialized service aims at guaranteeing the interest of the child requiring special attention and supervision, which cannot be realized by a parent or close relatives. This is a standard recognized in international instruments such as: Article 3 paragraph 3 and Article 40 paragraph 4 of the Convention on the Rights of the Child[1], and paragraphs 23, 90 and 94 of the General Comment 10 of the Committee on the Rights of the Child [2] and items 1.3 and 17.1 of the Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)[3], and paragraph 46 of the Preamble and Article 11 of the Directive 2016/800/EU[4].

     

    8. In the second paragraph, Article 84 of CCJC further lists that provide the specialized service for the implementation of such precautionary measure. Specifically, they are institutions or legal persons licensed for this purpose under Law 18/2007 “On the rights and protection of the child”. Hence, they are competent bodies provided to be established specifically for the implementation of Article 84 of the CCJC, according to the transitional provision, within 1 January 2019.

     

    9. Meanwhile, paragraph three of Article 84 defines the competence of the Council of Ministers to adopt by decision rules regarding: 

    1. organization and functioning of specialized service,
    2. funding of specialized services, and
    3. programmes of the specialized service.

     

    [1] See this document at: https://www.unicef.org/tfyrmacedonia/CRC_albanian_language_version(3).pdf

    [2] http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf

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

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

  • Historic context
    10. In Albanian legislation, this provision is a novelty. The precautionary measure for placing a child to a specialized service had not been known and consequently not provided in the procedural law.
  • International acts
    11. In the international aspect, a number of instruments have set the standard for the creation of such precautionary measures that do not prejudice the process of education and upbringing of a child in conflict with the law. Some of the international documents setting the above standards are the following:

     

    12. The Convention on the Rights of the Child [CRCH], 20 November 1989.[1]

     

    13. The Committee on the Rights of the Child at the UN, in the General Comment No. 10, “Children’s rights in criminal justice”.[2]

     

    14. The Beijing Rules (Standard Minimum Rules for the Administration of Juvenile Justice), resolution 40/33, 29 November 1985, rule 1.3.[3]

     

    15. Directive 2016/800/EU of the European Parliament and of the Council, “On procedural safeguards for children suspected or accused in criminal proceedings”, 11 May 2016.[4]

     

    [1] See https://www.unicef.org/tfyrmacedonia/CRC_albanian_language_version(3).pdf, last visited on 27 September 2017.

    [2] See http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf last visited on 27 September 2017.

    [3] See http://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf  last visited on 25 September 2017

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

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

  Article 228 of the CPC provides: 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. 

  Article 229 of the CPC provides: 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. … 3. If the defendant is a child, the court shall consider his/her highest interest and the request for an uninterrupted concrete educational process. 

  Article 230 of the CPC provides: … 4. Children accused of a criminal misdemeanour may not be arrested.

• Sublegal acts
  No Comment
• Decisions
  No Comment
• Literature

  Study on “Juvenile Justice in Albania: An analysis of the juvenile justice system and the situation of juveniles in conflict with the law in Albania”, supported by UNICEF, in partnership with European Commission and Sida.[1]

   

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

• Archive
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