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

Article 86: Criteria for imposition of arrest against a child

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1In addition to the provisions of Article 228 of the Code of Criminal Procedure, the measure of arrest in prison may be imposed against a child as a last alternative and only upon fulfilment of one of the following criteria:

athe sanction foreseen for the criminal offence of which the child is accused is imprisonment and the minimum sentence is over 7 years;

b"the measure is indispensable, because the child: i) is a threat to himself/herself and/or to others and such threat may not be avoided by any other way; ii) tries to flee justice."

Table of Content

      1. The purpose of Article 86 of CCJC is regulating the conditions and criteria to be followed, as long as the security measure of custody/detention is applied to the offending child as the last alternative. The legislator attracts the attention on the consequences of the arrest or detention on the psychological, intellectual, mental development compared to the other security measures on the child, as provided in Article 82 of CCJC and Article 232 of the Criminal Procedure Code (CrPC).

       

      1. The Prosecutor seeking the imposition of the measure of the arrest in prison and the court imposing it should evaluate the conditions and criteria for imposing the security measures in their entirety. There are instances where the measures of arrest in prison are necessary exclusively only to avoid the risk of obtaining authentical evidence, impact on the witnesses, or where there is a risk that the child might evade justice or commit another criminal offence. “For instance” is wrong because the conditions are exclusive, which means “only if” all these criteria are constituent parts of the legal provision of Article 86 of CCJC and they have to be analysed prior to imposing this security measure.
      1. Article 86 of CCJC consists of a single paragraph providing for, on one hand, through the referral to the Article 228 of CrPC, the conditions for imposing the security measure, on the other hand, it provides an additional condition, namely the imposition of it as the last alternative/last resort.

       

      1. Article 86 of CCJC enlists two cumulative criteria for imposing the security measure. According to this Article, specifically (a) the sanction foreseen for the criminal offence of which the child is accused is imprisonment is the minimum sentence of 7 years, and (b) the measure is indispensable, because the child is a threat to himself/herself and/or to others and such threat may not be avoided in any other way, or the child tries to flee justice.
      1. Article 86 of CCJC provides for the conditions and criteria for imposing the security measure of arrest in prison on the offending child. Implementing this article, the meaning of the “child” is provided in paragraph 4 of Article 3 of CCJC, it is about any person who has reached the age of criminal responsibility up to 18 years of age, against whom there is a reasonable doubt to believe that the child has committed a criminal offence.

       

      1. There needs to be highlighted that Article 86 of CCJC imposes a primary condition for the security measure namely as a last resort/alternative. This means that this should occur only if it is not possible to impose other, less severe security measures, according to the provisions contained in Article 82 of CCJC and Article 232 of CrPC. This standard was provided for in a series of international instruments.[1] This condition is abided by the court when analysing the entire conditions and the criteria and the principle of the protection of the best interest of the child, as mentioned in paragraph 9, Article 3 of CCJC.

       

      1. In addition to the condition of arrest in prison which is imposed as the last alternative of Article 86 of CCJC, referring to Article 228 of CrPC, provides for other conditions setting out the imposition of the security measures. These conditions are specifically:
      1. According to article 228, par 1, CrPC, the existence of reasonable doubt, based on evidence that the child has committed the criminal offence;
      2. According to article 228, par 2, CrPC, non-existence of the impunity conditions connected to the expungement of the criminal offence or conviction provided for in Article 66 and Article 71 of the Criminal Code (CC).

       

      1. Article 86 provides explicitly for the criteria for imposing this security measure. According to this provision, in concrete terms, the criteria to be analysed cumulatively by the court, are broken down into two groups, as follows:
      1. First, the criminal offence that the child, to whom the security measure of arrest in prison shall be imposed, has been suspected of having committed, is a crime subject to not less than 7 years imprisonment. In such a way, this criterion sets out a high threshold while restricting the imposition of the security measures to specific and rare cases to where the offence poses substantial social danger. Thus, the security measure can not be imposed for a criminal contravention, as provided for in Article 230, paragraph 4, of CrPC. This legal provision is a legal safeguard whereby the arrest in prison for the child is imposed only in instances of high social danger and where the incarceration of the child is the only legal possibility for granting security.  
      2. Second, the security measure is indispensable to be imposed, when:
      1. The child is a threat to himself/herself and/or to others and such threat may not be avoided in any other way. This means that, due to the circumstances of the fact and of the personality of the child, (1) there is a risk that he/she in the future commit other crimes and in such a case, if we refer to the Article 228, par 3, letter c of CrPC, these have to be very grave and of the same category; (2) there is risk to endanger authenticity of circumstances of the fact, for instance having an impact on the witnesses as provided for in Article 228, paragraph 3, letter a, of CrPC, as well as/or, 
      2. The child tries to evade justice, meaning that by way of his/her actions or omissions, due to the concrete circumstances, there is a risk that the child does not appear before the procedural bodies, and escape, as provided for in Article 228, par 3, letter ‘b’ of CrPC.

       

      [1] Please see this document: https://www.unicef.org/tdad/councilofeuropejjrec08(1).pdf

      1. The provision of Article 86 of CCJC brings in other requirements for the Albanian criminal legislation regarding the security measure of arrest in prison. This Article for the first time provides for the standard that the security measure of arrest in prison is imposed on the child only as the last alternative to other measures, for the suspicion of the commission of a crime being sentenced with at least 7 years imprisonment. In the meantime, other conditions and criteria have been provided in Articles 228, 229 and 230 of CrPC.
      1. In the international aspect, a series of instruments have provided for and imposed the standard in connection with the security measure of arrest in prison. Some of the international documents providing for the above standards areas follows:

       

      1. UNO Convention on the Rights of the Child, dated 20 November 1989, Article 37, inter alia, highlights: No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”

       https://www.unicef.org/tfyrmacedonia/CRC_albanian_language_version(3).pdf visited for the last time on 27 September 2017

       

      1. The Committee of the Rights of the Child at UNO, General Comment no 10 ‘Rights of children in criminal justice’ in (paragraphs 78-80)

      http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf visited for the last time on 27 September 2017. 

       

      1. The UNO General Assembly, Beijing Rules “Rules on the minimum standards for the Administration of Justice for Minors” Resolution 40/33, 29 November 1985, rule 13. 

      http://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf   visited for the last time on 27 September 2017

       

      1. The European parliament and Council, Directive 2016/800/EU “On protective procedural measures for suspected or accused children in criminal proceedings”, 11 May 2016, paragraph 45 of preamble.

      http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016L0800&from=EN, visited for the last time on 26 September 2017.

       

      1. The Committee of Ministers, Council of Europe, Recommendation CM/Rec/ (2208)11 “On European Rules for children being subject to criminal convictions and measures’ 5 November 2008, in part I, A, point 10.

      https://www.unicef.org/tdad/councilofeuropejjrec08(1).pdf visited for the last time on 27 September 2017.

       

      1. The Committee of Ministers, Council of Europe ‘Rules on the child friendly justice and Explanatory memorandum’, 17 November 2010, inter alia, highlights: “19. Any form of deprivation of liberty of children should be a measure of last resort and be for the shortest appropriate period of time…”

       https://rm.coe.int/16804b2cf3, visited for the last time on 25 September 2017.

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    1. Research: ‘Justice for children in Albania, an analysis of the system of administration of justice for children and situation of offending children in Albania’ was sponsored by UNICEF, with the support of the European Commission and SIDA.

     

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

  • Articles 228, 229 and 230 of CPC, having undergone changes by law no 35/2017, dated 30.3.2017 provided for.

Manjola Xhaxho
Renate Winter, Arta Mandro, Koraljka Bumči