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

Article 90: Child participation in trial

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1The child may not be tried in absentia.

2The Court shall guarantee child participation in trial through:

aconduction of a process appropriate for the understanding ability of the child;

bfrequent consecutive breaks and within a reasonable time, in accordance with the age, health conditions, special needs, including the needs related to disability and other circumstances of the child.

Table of Content

      1. The purpose of article 90 is in harmony with the purpose of Chapter X of the CCJC where procedural rules are stipulated in relation to the adjudication of children in conflict with the law. This article focuses on one of these rules such as the obligation that child trial may not be held in absentia. With the provision regarding the rule of child participation in trial our legislator intends that this participation be effective. This is underlined even through the specific provisions made in point 2 of article 90 where there is a combination of aspects that are related with the processes of understanding and of the special needs that the children have due to their age and other special needs.

       

      1. Article 90 intends to guarantee the child’s rights to attend the entire process with his direct participation. This does not mean only an adaptability of his participation just physically, but also guaranteeing a process which is acceptable regarding the intellectual level related with the psychic development of the child and which is appropriate for the child’s body and special needs. According to the content of this article, these needs may be classified in three directions, such as: the needs that are related with this age group, the needs of the child in question and the needs which come as a result of a limited skill, which makes the case special. 

       

      1. This article also intends to make it possible that firstly the child is heard directly by the court. This right is a guarantee in several international instruments such as: article 12 of the Convention for the Rights of the Child[1], article 24 of the European Charter of Fundamental Rights[2]. Secondly, this article guarantees the effective participation in the criminal process, which is provided for in several international documents, such as paragraphs 43-45 of the General Comment no. 10[3] of the Committee on the Rights of the Child, as well as rule 14 of the Rules for the Minimum Standards of the Justice Administration for Child (Rules of Beijing)[4]. Such a participation guarantees that the child expresses his views in relation with the charge, the evidence, etc. respecting in this way the principles of the defence [a] of the best interest of the child and [b] of the correct legal process. The principle of the best interest of the child is provided for in article 3/1 of the Convention on the Rights of the Child[5], article 10 of the CCJC and a series of other acts. The principle of the correct legal process is provided for by article 6 of the European Convention on the Protection of the Human Rights and Fundamental Freedoms and the regulations of Chapter II of the CCJC on the principles of juvenile justice and article 6 of the CCJC on the applicable legislation.

       

      [1] See this document at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx

      [2] See this document at: http://www.europarl.europa.eu/charter/pdf/text_en.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.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf

      [5] See this document at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx

      1. Article 90 of the CCJC is composed of two paragraphs. The first one provides for the principle of adjudication in the presence of the child, meanwhile the second paragraph provides for the standards that have to be taken into consideration during the adjudication for an effective realization of the participation of the child in the adjudication.

       

      1. Paragraph 1 of article 90 provides for the rule, meanwhile paragraph 2 provides for its implementation. The way how these two points of the article are related makes its structure clear and meaningful, because further to the rule of paragraph 1, paragraph 2 considers the participation as guaranteed only if [a] the trial is held in such a way that it is understandable for the child in question taking into consideration the ability to understand and [b] the treatment of the child in compliance with the physical and physiological needs related to the age, the specific health conditions, the special needs of the child which may be of a health character or which are related with the limited skills of the child, as well as other circumstances that may appear during the trial in relation with the child, case after case. This article provides for the discretion of the court and at the same time the obligation to have a trial with frequent breaks and with a reasonable duration.
      1. Article 90 guarantees the participation in the trial of the child in conflict with the law. In this perspective, article 90 should be considered in compliance with the meaning of paragraph 4 of article 3 of the CCJC, which provides for that every person who has reached the age of the criminal responsibility up to 18 years of age is a child. With regard to these objects, there is an obligation that the adjudication process cannot be held in absentia. According to paragraph 1 of article 90 of the CCJC and paragraph 6 of article 352 of the CPC, trial in absentia cannot be held for the child. This position of the legislator should be understood as respecting the procedural obligation of the state bodies (police, court) for finding, notifying and guaranteeing the right of the child to be heard by the court taking into consideration his/her age. According to this interpretation, based on article 352, paragraph 6 and paragraph 1 of the CPC, the court decides to suspend the trial in the case when the child is not found, until it finds the child and notifies him/her in relation to the progress of the trial.

       

      1. It should be mentioned from the beginning that even though article 90 of the CCJC does not refer openly to other legal provisions, it is a procedural regulation which is closely connected with some articles of the CCJC and of the CPC and it should be read together and in relation with them. This is the case of article 352 of the CPC, for example.

       

      1. Article 90 guarantees the right of the child in the capacity of the defendant to participate in the criminal proceeding, creating: [a] the conditions to guarantee the other rights of the child such as the one to be heard, to receive information in relation to the criminal process according to the interpretation of articles 3, paragraph 10, article 10 paragraph 2 letter “b” and 16 of the CCJC, the questioning of the witnesses, the submission of the evidence, etc. So, if the participation in the trial is ensured to the child, several other rights are guaranteed to him for the organisation of a due legal process against him/her. What is mentioned above is guaranteed by several international instruments, such as article 12 of the Convention on the Rights of the Child[1] or article 24 of the European Charter on the Fundamental Rights[2]. Also, [b] this article creates the opportunity to help the child to understand the offence committed by him, impacting positively on his/her rehabilitation.

       

      1. Effective participation in the trial: Article 90 provides for in its second paragraph procedural rules in order for the participation of the child in the adjudication to be effective. More concretely, in order for the court to ensure an effective adjudication for the child, it should: [a] guarantee that the process is understandable for the child. According to article 3 paragraph 10, this means that every information or data is appropriate and understandable for the age and the reasoning of the child, to make it possible for him to exercise the rights, except for the case when the provision of this information is in contradiction with the highest interest of the child. Additionally, to guarantee what is mentioned above, the legislator has stipulated that according to article 50 paragraph 1 of the CCJC, in the case when the child does not understand partially or completely or if he cannot speak the language that is used in the proceeding, a free-of-charge interpreter is assigned for him. This interpreter should be present in every procedural action. This means that the court should use during the procedure an appropriate communicating language according to the circumstances of the case, based on the age and the understanding skills of the child. This is provided for by several international documents such as paragraphs 43-45 of the General Committee no. 10 of the Committee on the Rights of the Child, as well as rule 14 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules"). The mandatory participation and the assistance of the psychologist, of the legal representative and of the defence counsel in the trial is another guarantee that the court should provide to ensure the participation of the child in the trial, according to the provisions in articles 19 paragraph 3 letter “a”, “ç”, 20 paragraph 1, 48 paragraph 4, 49 of the CCJC; [b] to organize the trial with frequent breaks within a reasonable time, in accordance with the age, the health conditions, the special needs, including the needs related with the disability, as well as other circumstances of the child. More concretely, the court should provide for and plan an interruption of the hearings for a reasonable time, taking into consideration: 
      1. the age of the child that is to say his/her intellectual development in order for the child to have the possibility to bear the burden of the trial itself;
      2. the health condition and the special needs of the child with disabilities, based even on the interpretation of article 50 paragraph 3 of the CCJC. This means that the focus should be on the physical, psychological and mental problems, the child may have, in order for him/her to have the possibility to be able to stay and participate in the trial and to surpass in this way the difficulties which originate even from the limited capability of the child according to the interpretations of article 13 and 7 of the Convention of the UNO “On the Rights of the Persons with Disabilities and the Optional Protocol” December 2006, ratified with law 9833, dated 22.11.2007 and article 4 letter “ç” up to letter “ë” of law no. 93/2014 “On the involvement and the accessibility of the people with disabilities”.
      3. as well as every other circumstance, that is related to the child, requiring a break and the interruption of the trial for a healthy physical, mental, psychological, moral development of the child according to the principle on guaranteeing the best interest of the child, which is defined at article 3 paragraph 9 of the CCJC.

       

      1. The provision of article 90 of the CCJC for the adjudication in the presence of the child, otherwise the prevention of the adjudication in absentia, means that in certain cases, the hearing or a part of it, may be held without the participation of the child, who is considered to be present, due to the law, and is represented by his defence counsel. Such cases include: the situation when the child victim of the criminal offence testifies according to article 40 of the CCJC.

       

      [1] See this document at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx

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

      1. This provision is a novelty in the Albanian legislation as it is stipulated for the first time in the criminal procedural legislation. According to the new legal regulation of the CPC, before the entry into force of its amendments provided for in law no. 35/30.03.2017, there were no specific provisions for the child. Articles 351 “on announcement the absence” and Article 352 “the absence and voluntary abandonment of the defendant” of CPC and the child was adjudicated in absentia, same as adults. and before the entry into force of the CCJC. These provisions of CPC have now completely new regulations after the changes 2017, which is a step forward, towards the international standards.
      1. With regard to the international aspects, several instruments have provided for and have established the standard for the participation of the child in adjudication. Some of the international documents which provide for the above standards are as follows: The General Assembly of the UNO, the Convention on the Rights of the Child, November 20, 1989, article 3/1 highlights that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”; article 12 highlights that “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. 

      http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx last accessed on September 16, 2017

       

      1. The Committee on the Rights of Children attached to the UNO, the General Comment no .10 “The rights of the children in criminal justice”, in paragraphs 43-45 underlines that “The right to be heard (art. 12) 43. Article 12 (2) of CRC requires that a child be provided with the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly or through are presentative or an appropriate body in a manner consistent with the procedural rules of national law. 44. It is obvious that for a child alleged as, accused of, or recognized as having infringed the penal law, the right to be heard is fundamental for a fair trial. It is equally obvious that the child has the right to be heard directly and not only through a representative or an appropriate body if it is in her/his best interests. … In other words, the child must be given the opportunity to express his/her views freely, and those views should be given due weight in accordance with the age and maturity of the child (art. 12 (1)), throughout the juvenile justice process It goes without saying that the judges involved are responsible for taking the decisions. But to treat the child as a passive object does not recognize his/her rights nor does it contribute to an effective response to his/her behaviour. This also applies to the implementation of the measure(s) imposed. Research shows that an active engagement of the child in this implementation will, in most cases, contribute to a positive result. The right to effective participation in the proceedings (art 40 (2) (b) (iv)).”

      http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf  last accessed on September 16, 2017

       

      1. The European Parliament and Council, Directive 2016/800/EU “On the procedural protective measures for the children suspected or accused in the criminal procedure”, May 11, 2016, article16 paragraph 1 stipulates that “Member States shall ensure that children have the right to be present at their trial and shall take all necessary measures to enable them to participate effectively in the trial, including by giving them the opportunity to be heard and to express their views.” 

      http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016L0800&from=EN

      https://rm.coe.int/168046e1e1 Last accessed on August 16, 2017.

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  • Article 16 of the CCJC provides for that: 

    The right of participation in the process includes the right of the child to be heard and express own views which are given due weight in accordance with the age and maturity of the child.  Where a child seeks to be heard, the request shall be accepted, except for important reasons which are reasoned in the respective decision.  If the child is unable to exercise this right, he/she may do so through the parent as a legal representative. 

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  • Study: “Juvenile justice in Albania, an analysis on the justice administration system for children and on the condition of the children in conflict with the law in Albania”, 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

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Manjola Xhaxho
Arta Mandro, Koraljka Bumči