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

Article 85: Duration and validation of arrest or detention of the child

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1A child may be arrested or detained in compliance with the provisions of the Code of Criminal Procedure and this Code.

2The prosecutor shall, without delay, when forthwith release is not ordered, but however, within 48 hours from arrest or detention, request their validation by the competent court.

3Failure to meet this deadline shall make the arrest or detention powerless and the child shall be released immediately, unless the court assesses them and imposes a security measure.

4The judge, when examining the validation of arrest or detention shall hear the child directly and take the decision immediately thereafter.

Table of Content

      1. Article 85 of CCJC foresees the specific rules regarding the prerequisites, criteria, validity of arrest or detention of the child, as important aspects in the attention of the prosecution office and the court.

       

      1. The purpose of this Article is to establish the appropriate relationship between the provisions of CCJC and the provisions of the Criminal Procedure Code (CPC) regarding the arrest in the act of commission and detention of the suspect of having committed a criminal offence.

       

      1. Article 85 aims at providing for the procedural safeguards by way of providing for a legal time period for bringing the arrested or detained child before the competent court. In such a way, it is aimed at safeguarding the principle ‘habeas corpus’, thus providing for the obligation to hear the child and thereafter rendering the decision on the legitimacy of detention or arrest, and simultaneously the court validating them and imposing one of the security measures.
      1. Article 85 of CCJC consists of four paragraphs, aiming at providing an explanation to the meaning of this Article being connected to each other.

       

      1. The first paragraph of Article 85, provides for the possibility of arrest and detention of the child, which should be considered by the court and prosecution office in compliance with the rules contained in CPC and CCJC.

       

      1. Paragraphs 2, 3 and 4 provide for the procedural guarantees in the event of arrest or detention of the child. Such are specifically: (a) obligation of the prosecutor to submit the request to evaluate the arrest or detention of the child by the competent court within 48 hours. Failure to abide by this legal deadline may incur two consequences. First, immediate release of the child in the event of not meeting this deadline and, second, non-immediate release of the child as long as the court has evaluated it and imposed a security measure. Another guarantee is (b) the obligation of the prosecution office to bring the child in person before the court. In such a case, the court hears the child in person and evaluates of the arrest or detention and, as appropriate, imposes a security measure or not. The proceeding body, in accordance with articles 73 and 74 of the CCJC, informs the child about the right to notify the parent and, in his absence, another adult person shown and accepted by him; makes immediately all the relevant measures for realising the announcement, as appropriate, of the legal or procedural representative of the child, in accordance with the rules provided for in this Code; immediately upon bringing the child into the premises of the respective institution, notifies the legal representative of the child or the adult person, shown and received by him, regarding the arrest of the child, the whereabouts of pretrial detention and explains the reasons for the arrest and makes available a copy of the Letter of Rights.
      1. Article 85 of CCJC provides for rules regarding the procedure and legal timing of evaluating the arrest (meaning arrest in flagrante delicto) or detention of the child by the competent court in order to have the best interest of the offending child protected. Referring to this provision, the child in question is a person having reached the age of criminal liability up to the age of 18, for whom a reasonable suspicion exists of having committed a criminal offence or if he/she have been taken as defendants, according to paragraph 4 of Article 3 of the CCJC.

       

      1. The first paragraph of Article 85 is a referral provision. It stipulates that arrest in flagrante delicto or detention of the child is done in compliance with the provisions of the CPC and CCJC. So, Article 85 takes us to some Articles of CPC. According to CPC, the prerequisites and criteria of arrest in the act of commission of a crime provide that the arrest in this context shall be carried out as long as the circumstances of immediate commission exist. The definition of the act of commission is contained in Article 252 of CPC. The act of commission applies to the arrested person, who in this case is (a) the child, (b) is apprehended while in the commission of the criminal offence or immediately after having committed it, because of pursuit by the judiciary police, by the victim or by other persons, or when apprehended in possession of the items and material evidence, from which it results that he/she committed the criminal offence.

       

      1. At the same time, an objective determinant criterion for such arrest is the criminal offence which the arrested person is suspected of having committed. In this sense, Article 251 of CPC [hyperlink] provides for procedural rules mainly for the judicial police officers and agents. The latter shall always carry out the arrest of anyone being apprehended in the act of committing a crime intentionally, having it completed or attempted, punished by law with imprisonment of not less than a maximum of five years. Article 251 of CPC provides for even other situations being connected to the arrest in flagrante delicto, even where the conditions of paragraph 2 are not assured, as long it is necessary, due to the importance of the fact or danger powered by the person, being motivated by a separate act [paragraph 3 of Article 251 of CPC]. 

       

      1. The prerequisites and criteria of detention are provided in Article 253 of CPC [hyperlink]. According to this Article, the detention has the following conditions: ‘1. When founded reasons exist to believe that there is a risk of escape, the prosecutor shall order the detention of the person suspected of having committed a crime, punishable by law by not less than four years’ imprisonment, in the maximum term. 2. The judicial police shall perform the detention ex officio, in cases where, due to urgency reasons, it is not possible to wait for the prosecutor’s order.”

       

      1. In the event of arrest or detention in flagrante delicto, the second paragraph of Article 85 provides for the obligation of the prosecutor, who, upon not ordering the release of the child, has the obligation to file to the competent court the request about the evaluation of the legitimacy of arrest or detention within a maximum period of 48 hours. Regarding the legal deadline being provided in Article 85 ‘within 48 hours of the arrest or detention’, it has to be highlighted that this is a safeguard to protect the child against arbitrary arrests or detentions. For a proper monitoring of this time limit, an accurate protocol must be kept including the hour and minute of the arrest by the police and which is submitted to the prosecutor in order to comply with legal obligations. Paragraph 2 of Article 85 is in compliance with the Constitution of RA, Articles 27, paragraph 2, letter ‘c’ and Article 28, paragraph 2, according to which the prosecutor should seek the legal evaluation of the arrest or detention in the act of commission before the competent court, the latter being the section for children at the court of judicial district, as mentioned in Article 27, paragraph 1 of CCJC. This provision is in compliance with the international standards that the child should be brought before the competent court within a reasonable deadline in the event of arrest or detention, provided for in a series of international instruments, such as Article 5, paragraph 3 of the Convention on the Rights of the Child; and paragraph 83 of the General Comment no 10 of the Committee of the Rights of the Child. This Article is a legal guarantee for avoiding the abuse by the state authorities by way of arrests and detention of children, thus preventing arbitrary decisions and supervision as soon as possible by an independent and impartial court, while upholding the best interest of the child and avoiding a long stay under arrest or detention circumstances, since this harms the process of normal psychological, intellectual development of the child. This is stipulated in a series of international instruments, such as, for instance, Article 37, paragraph ‘b’ and ‘d’ of the Convention on the Rights of the Child, Rules 10.1 and 10.2 of the Rules on the Minimum Standards of Administering Justice for Children, mentioned in the ‘international legislation’ rubric of this comment.

       

      1. Regarding the phrase ‘the child is being immediately released’ according to point 3 of CCJC, it is highlighted that in the event of the child not being brought before the court within 48 hours, the arrest or detention becomes void and consequently the child has to be released immediately. Otherwise, the court, based on the request of the prosecutor having been submitted under the legal circumstances provided for in Article 258 of CPC, has to make the evaluation in the concrete case whether the conditions and criteria of arrest and detention of the child in the act of commission have been met, as provided in Articles 251, 252 and 253 of CPC. If the court, based on the request of the prosecutor in the judicial hearing provided in Article 259 of CPC, evaluates whether in the concrete case the legal conditions and criteria provided for in Articles 228, 229 and 230 of CCJC exist, to impose a security measure on the child and which of the measures concretely is appropriate to both, the needs of security and ensuring the best interest of the child.

       

      1. In the hearing of evaluation of the arrest or detention, as well as of imposing the security measures according to paragraph 4 of Article 85 of CCJC and Article 256 of CPC, the judge shall personally hear the child and, after examining the evidence, the same shall render the decision immediately. Regarding the phrase ‘the judge hears the child in person and renders the decision immediately’ according to Article 85, paragraph 4, of CCJC, it needs to be highlighted that it is clearly understood that the lawmaker asks for the presence of the child before the court two times: for the evaluation of the legitimacy of the arrest or detention of the child in the act of committing the offence and for the evaluation of the legal conditions and criteria whether a security measures has to be imposed on the child. If the court holds that a measure has to be imposed, the same court shall be competent to determine which of them would be appropriate for the purposes of security, as provided for in Articles 228 [hyperlink], 229 [hyperlink] and 230 [hyperlink] of CPC and above all which would be in compliance with the best interest of this child. These security measures have been enlisted in Article 82 [hyperlink] of CCJC and Article 232 of CPC.

       

      1. At the same time, it is worth highlighting that according to Article 85, paragraph 4, of CCJC by ‘the judge hearing the child in person’, while recalling that in the hearing of evaluation of the arrest or detention, as well as of imposing the security measure, the arrested or detained child is granted the right to be heard and express his/her opinion, including the right to remain silent, as guaranteed in a series of international instruments. This principle of hearing the child in person, meaning that the child expresses his opinion before the judge regarding the circumstances of the case and his/her stance on those. This principle is specifically important for the arrested or detained child especially regarding the imposition of a security measure in order for court to guarantee the normal psychological, mental development as well as the development of the education process of the child. Article 85, paragraph 4, does not speak about the regulation of the procedural guarantees and rights of due process being granted to the child during the arrest or detention and conduct of the judicial hearing of evaluating them and imposing the security measure. However, they are a legal obligation being guaranteed by the proceeding bodies carrying out the arrest or detention of the child, such as the judicial police or prosecution office, as well as the court in the judicial hearing of evaluating them. Concretely, of specific importance in this respect is the observation of the procedural rights and guarantees, such as the legal protection, presence of psychologist and legal representative, the right to be heard and express oneself, the right not to be self-incriminating, thus observing the best interest of the child, as provided in the CCJC, and acknowledged in a series of international instruments, such as the paragraph 30 of the Preamble and Article 6/6 of Directive 2016/800/EU[1].

       

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

      1. The provision contained in Article 85 of the CCJC is not a novum for the Albanian criminal legislation. This provision is similar to the reflection of the regulation of CPC regarding the conditions and criteria of arrest in the act of commission and detaining the person suspected of having committed a criminal offence provided for in Article 251, 252 and 253 of CPC, as well as the legal regulations regarding the evaluation and imposing the security measure under Article 259 of CPC.
      1. At international level, a series of instruments have provided for and imposed the standard of arrest and detention of the child and having the evaluation thereof made by the competent court within a reasonable time. Some of the international documents providing for the above standards are as follows:

       

      1. UNO Convention on the Rights of the Child, dated 20 November 1989, Article 37.[1]

       

      1. UNO International Treaty on Civil and Political Rights, dated 20 November 1989, ratified by the law no 7510, dated 08.08.1991, Article 9.[2]

       

      1. The Committee of the Rights of the Child at UNO, General Comment no 10 ‘Rights of children in criminal justice’, paragraphs 82-84[3]

       

      1. UNO General Assembly, Peking Rules (Rules on minimum standards of justice administration for children) Resolution no 40/33, 29, November 1985, Rules 10.1 and 10.2[4]

       

      1. Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, 04/11/1950, in Article 5, paragraph 1/c and 3.[5]

       

      [1] See https://www.unicef.org/tfyrmacedonia/CRC_albanian_language_version(3).pdf visited for the last time on 25 September 2017

      [2] See http://www.magjistratura.edu.al/media/users/4/pakti%20per%20te%20drejtat%20civile%20dhe%20politike%20OKB.pdf visited for the last time on 25 September 2017

      [3] See http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf visited for the last time on 25 September 2017

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

      [5] See http://www.echr.coe.int/Documents/Convention_SQI.pdf visited for the last time on 26 September 2017

  • No Comment
  • No Comment

  • Constitution: 

    Article 27, paragraph 2 [hyperlink] 

    Article 28, paragraph 2 [hyperlink] 

    Code of Criminal Justice for Children: 

    Article 27, paragraph 1 [hyperlink] 

    Article 3, paragraph 4 [hyperlink] 

    Article 82 [hyperlink] 

    Criminal Procedure Code 

    Article 228 [hyperlink] 

    Article 229 [hyperlink] 

    Article 230 [hyperlink] 

    Article 232 [hyperlink] 

    Article 258 [hyperlink] 

    Article 259 [hyperlink]

  • No Comment
  • No Comment

  • Study on ‘Justice for children in Albania, an analysis of the system of administration of justice for children and situation of offending children in Albania’, sponsored by UNICEF, with the support of the European Commission and SIDA.[1]

     

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

  • Article 259 of CPC, prior to amendments by law no 35/2017, dated 30.3.2017.

Manjola Xhaxho
Arta Mandro, Koraljka Bumči, Renate Winter