Table of Content

• Comments
  • Purpose
    1. The purpose of Article 89, being part of the regulations of Chapter X of CCJM, setting out the elements of the proceedings for offending minors, is clearly and finally determining that the proceedings have to start with a non-public judicial hearing. The objectives of this regulation are, on one hand, to set out who should take part in the hearing, who may take part and who should not and who can not be a participant in proceedings and, on the other hand, the privacy of the minor has to be protected in compliance with the principle of guaranteeing his/her beet interest.

     

    2. Setting out the non-public hearing as a binding norm, Article 89 aims at avoiding the exposure of the minor to the public, media and journalists, as well as to other entities set out on case basis, thus avoiding stigmatisation, social isolation and negative publicity which may be sustained by them due to the criminal proceedings. Thus, the non-public adjudication aims at avoiding the psychological, emotional and mental impairment of the minor during the criminal proceedings, while guaranteeing his/her fast rehabilitation.
  • Scope
    3. Article 89 of CCJM consists of a single sentence, which clearly and finally sets out the procedural rule of adjudication in non-public haring for the offending minor, while leaving no room for alternative interpretations and making no explanation as to what is meant thereafter.

     

    4. This telegraphic style structure of the Article certainly invokes other Articles of CJM and CPC while setting out more detailed rules regarding the entities who may not be present during the adjudication process.
  • Comments
    5. The ‘implied referring’ character of Article 89: We comment, right at the outset, that Article 89 of CCJM is, despite not referring to other legal provisions, a procedural regulation touching upon and to be read along with a serious of other Articles. These Articles are part of CCJM and/or CPC. Based on Article 5 of the CCJM, it should be noted that the implementation of the provisions of other laws is carried out in the manner provided for in this article. Thus, this means that other laws apply only to issues that are not regulated by this Code or contain more favorable rules for minors. In this status the CPC rules also apply. Thus, as it is going to be analysed further, important articles being contained in CCJM are Article 19 on the rights of the minor in criminal proceedings, specifically paragraph 3, letters “a”,”c” and “ç”; Article 21 on the protection of privacy and specifically paragraphs 1, 2, 3 and 4 of this Article; Article 48 on the protection of the minor, specifically paragraph 4; Article 49 on the mandatory presence of the defence lawyer, legal representative and psychologist and the exceptional cases; Article 50 of the presence of the translator and specifically paragraphs 1 and 3. It is also worth mentioning here Article 39, paragraph 3 and Article 41, paragraph 5 of CCJM bearing a connection to special rules of interrogation of minors as a victim and/or witness and to special rules of interrogating the minor as a victim and/or witness and to the sexual exploitation or sexual violence. In both cases there are provisions for the obligation to conduct non-public hearing. At the same time, this Article refers to [b] Criminal Procedure Code [CPC] and specifically Article 340. Specifically, Article 89 of CCJM and Article 340, paragraph 2 letter “a” of CPC explicitly provide that the judicial hearing shall always be conducted with closed doors in cases of adjudication minors Here has to be mentioned also letter b) of the same article of the CPC which is a novelty. This provides obligation of the court to adjudicate with closed doors even the cases where the adults are charged for offences committed against minors (Article 340, paragraph 2 letter “b”). Thus, the judicial hearing is not open to the public according to Article 339, paragraphs 1 and 2 of CPC provides for possibility that minor attends the hearing as a public.

     

    6. Connection to the international standards: The provision of article 89 guarantees the protection of private life of the minor in the phase of his adjudication, a right provided for in a series of international instruments. This rule is supported by international standards, such as for instance: [a] par 56 of initials and Article 14 of the Directive of the European Parliament and Council 2016/800/EU “On procedural safeguards for children who are suspected or accused in criminal proceedings”[1]. At the same time, [b] Articles 16; and 40 (2) (b) (vii) of the Convention for the Rights of the Child[2] (KDF), dealt with and interpreted by the Committee for the Rights of the Child in paragraphs 64-67 of the General Comment no 10[3]; [c] Article 7 connected to Article 24 of Charter of Fundamental Rights of the European Union[4].

     

    7. Article 89, prohibits to make public the judicial hearing and consequently divulging the personal data of the minor as provided in the Article 103 of the CPC. This provision avoids, in the first place, damage to the psychological, emotional, mental development of the minor, which may be a consequence of the impact and negative publicity of the criminal proceedings in society. Moreover, this is in line with the Article 21 CCJM “Protection of privacy of the childe”. On the other hand, the court should guarantee the freedom of expression and the right of the public to obtain information on criminal proceedings, as well as the right of the media to disseminate such information, as a fundamental right provided for in a series of international instruments, such as Article 10 of the European Convention of Human Rights, Article 11 of the European Charter of Fundamental Rights etc. However, Article 89 of CCJM, as well as mentioned Article 340 of the CPC, restricts this freedom, taking into account the best interest of the minor and thus guaranteeing their right to privacy, since making information as above public, would harm the minor and might stigmatise them in society. Regarding these proceedings, the information being provided to the public should avoid the identification of the minor as provided for in Article 21, paragraph 2 of CCJM and in Article 103 of the CPC.

     

    8. Article 89 is a procedural regulation. The person being protected is the minor in conflict with the Law as to paragraph 4 of Article 3 of CCJM. Thus, inter alia, any person having reached the age of criminal liability and and being under 18 years of age accused as a defendant of a criminal offence, should be adjudicated in non-public judicial hearings. This legal provision (a) on one hand, requires adjudication in absence of the public, which means that the circle of persons attending and those who should not attend the proceedings should be determined and (b) on the other hand, this implies the obligation of the participants in the non-public hearing not to make public the data and information being obtained during the judicial hearing, as provided for in articles 103, paragraphs 3 and 4 and in 340, paragraph 4 of CPC.

     

    9. The persons attending the non-public adjudication: only persons allowed by law to participate in judicial hearings can attend, namely : [a] the adjudication panel dealing with the case; [b] parties: prosecutor and the offending minor; [c] defence lawyer of the minor according to Article 19, paragraph 3 letter “a”, Article 48, paragraph 4, and Article 49, paragraph 1, of CCJM; [ç] psychologist assisting the minor in proceedings under Article 19, paragraph 3 letter “a” and Article 49, paragraph 1 of CCJM; [d] legal representative (paragraph 16 of Articlet 3 of CCJM) or a person of trust (paragraph 18 of Article 3 of CCJM). These persons attend the adjudication according to Article 19, paragraph 3 letter “ç” and Article  49, paragraph 1 of CCJM, unless this is prohibited by the court, as long as this is in the best interest of the child according to Article 49, paragraph 3 and Article 19, paragraph 3 of CCJM; [e] translator, if the minor does not know the Albanian language (Article 19, paragraph 3 letter “c” of CCJM and Article 50, paragraph 1 of CCJM); [f] interpreter, if the minor does not know the language of signs, as well as any person that the court holds is necessary in judicial hearing in order to guarantee the effective participation of the minor, if he is with limited capabilities, to the effect of offering to him an effective service for the participation in judicial hearing (Articles 19, paragraph 3 letter “c” of CCJM and Article 50, paragraph 3 of CCJM). It should be highlighted that the conduct of the non-public judicial hearing protects the privacy of the minor victim as well, as provided in Article 21, paragraph 2 of CCJM, in compliance with the other provisions of CCJM, such as Article 41, paragraph 5, Article 91 of CCJM.

     

    10. Conducting the non-public judicial hearing implies also the obligation not to make public the data and the information of the court hearing, which has been decided to be a non-public hearing. This is done through: (a) non identification of the minor in conflict with the law, in compliance with Article 21, paragraph 2 of CCJM, (b) by way of non- disseminating the acts of the judicial examination, according to Article 21, paragraph 4 of CCJM and from the Article 103, paragraphs 3 and 4 of CPC; (c) keeping the information obtained in judicial hearing confidential, this emerging from the provisions of Article 340, paragraph 4 of CPC; as well as (ç) by way of not making public information on the previous sentence of the minor, as long as this is the case, under Article 21, paragraph 3 of CCJM. Violation of the publication prohibition constitutes either a disciplinary infringement or a criminal offence (Article 104 CPC).

     

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

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

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

    [4] See this document at: http://www.europarl.europa.eu/charter/pdf/text_en.pdf

  • Historic context
    11. It is the first time that the procedural rule that the adjudication of a minor as defendant in connection with the commission of a criminal offence has to be conducted in non-public hearing, has been regulated in the Albanian legislation. According to the legal provisions of CPC prior to the entry to effect of the amendments provided for in the law no 35/2017, dated 30/03/2017, as well as prior to the entry into effect of the CCJM, the general rule was that the adjudication of minors as well as of majors had to occur in a public judicial hearing and, exceptionally, in special cases the criminal judicial hearings might be conducted in closed court in order to protect the following interests: a) public moral; b) public law and order; c) privacy; d) interests of minors; e) classified information; f) commercial secrets; g) for any other reason which is considered to harm the interests of justice. According to Article 340 of CPC, this was the conclusion of the Group of Expert of Senior Level at the Ad Hoc Parliamentary Committee of the Justice System Reform, in the Justice System Analysis in Albania, in paragraph 2.1.1 page 261. In the meantime, according to the provision of Article 103 of CPC, which has not been amended by law no  35/2017, even the partial publication of the judicial examination acts was prohibited, as long as the trial was conducted in closed court, as well as the publication of personal data and photos of the minor defendants and witnesses, being accused or aggrieved of a criminal offence.  Also, pursuant to Article 103 of CPC, the court might allow the publication only when the interest of the minor requires so or the minor has reached the age of sixteen years.
  • International acts
    12. At international level, a series of instruments have provided for and established the standard that the minor should be adjudicated in the judicial hearing at closed court, thus guaranteeing first of all their non-stigmatistion in regard to their future and the protection of his/her private life. Some of the international documents providing for the above standards areas are as follows:

     

    13. UN Convention on the rights of the Child, 20 November 1989, Article 16 highlights ‘1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child shall be entitled to legal protection against such intrusions or infringements. ‘; Article 40 (2) (b) (vii) highlights “To have his or her privacy fully respected at all stages of the proceedings.[1] 

     

    14. The Committee of the Rights of the Child at UNO, General Comment no 10 ‘Rights of children in criminal justice’ (paragraphs 64-67) [2]

     

    15. The European Parliament, Council and European Commission of European Union, Charter of Fundamental Rights, 2012, Article 7, paragraph 1 and Article 24, paragraph 1.[3]

     

    16. European Parliament and Council, Directive 2016/800/EU “On procedural safeguards for children who are suspects or accused persons in criminal proceedings”, dated 11 May 2016, paragraph 56 of the preamble and Article 14. [4]

     

    [1] https://www.unicef.org/tfyrmacedonia/CRC_albanian_language_version(3).pdf visited for the last time on 16 September 2017. 

    [2] http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf visited for the last time on 16 September 2017. 

    [3] http://www.europarl.europa.eu/charter/pdf/text_en.pdf visited for the last time on 16 September 2017

    [4] http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016L0800&from=EN visited for the last time on 16 September 2017. 

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

  The Group of Expert of Senior Level at the Ad Hoc Parliamentary Committee of the Justice System Reform, in the Justice System Analysis in Albania, [1]

  [1] http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf visited for the last time on 16 September 2017.

• Related articles

  Articles of the CCJM: 3, paragraphs 4, 16, 18; 21; 41; 48; 49; 50 paragraph 1 and 3.

  Articles of the CPC: 103; 104; 340 paragraph 2 and 4; 399.

• Sublegal acts
  No Comment
• Decisions
  No Comment
• Literature

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

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

• Archive

  Article 340 of Criminal Procedure Code, prior to the changes by law no 35/2017, dated 30.03.2017 provided for.

  1. The court decides to hold the judicial trial or any of its actions with closed doors:

  a) when the publicity may damage the social morality, or may divulge data which must be kept secret for the interest of the State, if this is requested by the competent authority;

  b) in case of behaviours which impair the normal performance of the hearing;

  c) when it is necessary to protect the safety of witnesses or defendants;

  ç) when necessary during the questioning of minors.

  2. The decision of the court for holding the hearing with closed doors is revoked when the reasons supporting such decision cease to exist.