Table of Content

• Comments
  • Purpose
    1. The purpose of Article 91 of the CCJC is in compliance with the purpose of Chapter X of the CCJC, which provides procedural rules regarding the trial of children in conflict with the law.

     

    2. Article 91 reiterates the presumption that the trial is conducted as a rule only in the presence of the child. This article seems to further elaborate the principle and the standard dealt in Article 90 of the CCJC. No judgment in the absence of the child, providing exceptions for the presence of the child in the session, provision of an interpretation of court hearings held without the presence of the child in conflict with the law. Thus, Article 91 confirms that a judgment in absentia of a child offender is not possible in any circumstances. However, it is possible to expel a child temporarily from a court hearing if, during the examination of evidence, there may psychological, stress and fear effects occur that may have a negative impact on the child and be contrary to the best interests of the child.

     

    3. Article 91 provides the criteria and legal procedure for the conduct of a court hearing or part of it aiming to comply with the legal guarantees of the regular process. In specific terms, the defence counsel and the legal representative must mandatorily be present in the court hearing held without the presence of the child.

     

    4. Article 91/4 provides a specific arrangement for a court hearing without the presence of the legal representative of the child when this is in the best interest of him/her.
  • Scope
    5. Article 91 of the CCJC consists of seven paragraphs. The first paragraph reiterates the principle of trial in the presence of the child. Paragraphs two to six provides: [a] the cases when a trial is held without the presence of a child in conflict with the law, [b] the legal criteria of such trial, [c] the procedure followed by the court for taking a decision on the absence of the child defendant, and [ç] the procedural guarantees for the child defendant concerning the temporary absence at trial. In addition, Article 91/4 regulates the case when the legal representative of the child cannot be present in the courtroom during trial.
  • Comments
    6. Cases and criteria on the absence of the child during the trial: Article 91 provides that exception can be made from the rule of trial in presence of the child defendant. In its second paragraph, Article 91 provides that the trial may be conducted in absence of a child in conflict with the law in the following cases: 

    1. Only during the examination of evidence during the trial;
    2. Only if the absence of the child is in his/her best interest;
    3. Only on the basis of a court decision based on its discreetion mainly or based on the request of the parties. Parties to such a case are: the prosecutor; the defence counsel of the child and the child defendant.
    4. Only the court may decide that the child leaves the courtroom;
    5. Right of objection: the court informs the parties on the right to object such decision during the same court hearing.
    6. In case of objection, the court immediately suspends the examination of the evidence until a decision is taken regarding such objection, which is taken If the court accepts the objection, the hearing takes place in the presence of the child, and if the court does not accept the objection, the court hearing takes place in the absence of the child.

     

    7. The trial without the presence of the child under paragraph 2 of Article 91 occurs only in exceptional cases, at the stage of the examination of evidence, such as in cases of domestic violence, violated parents, cases of mothers abused by minor boys. After hearing the psychologist whether it would damage the best interest of the child the questioning of the injured persons would be conducted without the presence of the child defendant. Facing the violated parent might have implications for the psychological, intellectual and mental development of the child. Another case concerns the testimony of child victims regulated in Article 91, Article 40, paragraph 1 of the CCJC, 41 paragraph 1, 42 paragraph 1 of the CCJC and Article 361/a of the Criminal Procedure Code (CrPP). These legal provisions regulate inter alia the taking of the testimony of the child victim as evidence in the criminal process. Such evidence is given without the presence of the defendant. When the victim in the criminal process is a child, the child defendant does not attend a court hearing. The court decides that the defendant leaves the court hearing, assessing the best interest of the child victim and of the defendant. At the other hand, if the court considers that, for example, the presence of the child during a witness’s questioning would affect the psychological, mental development or rehabilitation of a child, then Article 91 provides the legal possibility for the court to limit the right of the child to participate personally in the criminal process, as the court must take care of complying with the best interest of the child.

     

    8. Time limits for the absence of a minor: Article 91 provides that the absence of the child during the trial should be for a short period, only during the taking of evidence i.e. questioning of a witness, etc. At the end of it, the presence of the child is again mandatory.

     

    9. The presence/non-presence of the legal representative and the presence of the defence counsel during the absence of the child: examination of evidence in the absence of the child is always made in the presence of the defence counsel and his/her legal representative according to Article 16 paragraph 3 of the CCJC. The participation of the child during trial is guaranteed through his/her representatives. Article 91/4 provides that the court has the right to prohibit the participation of a legal representative. The child’s legal representative is prohibited from participating in the trial only if it is in the best interest of the child. So, if during trial, the presence of the legal representative would violate the psychological and mental well-being of the child, this prohibition is in line with international standards such as Article 14, paragraph 4 of Directive 2016/800 EC[1] . Such restriction is not provided for the defence counsel.

     

    10. Children who are not present during evidence taking shall be informed after their return to the courtroom. The child is informed by the court, to the extent it is necessary and understandable, about the content of the evidence examined. The mention “to the extent it is necessary” should not be understood as a restriction to information to the child, but as a court duty to: [a] to secure the child’s right to a due legal process by obtaining information about the criminal process for which he/she has the right to provide an opinion and to express an opinion; and [b] to guarantee the best interest of the child, without prejudice to his or her psychological, mental development or rehabilitation process. The notion “understandable” means that the court has the obligation to consider the intellectual, psychological and mental level of the child given his/her specific circumstances according to paragraph 5 of Article 16 of the CCJC. In this regard, the court shall also guarantee the rights of children with disabilities according to the provision of Article 50, paragraph 3 of the CCJC and Article 4 letter “c¸” to to “e¨” of the Law no. 93/2014 dated 24.7.2014 “On the inclusion and accessibility of persons with disabilities”.

     

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

  • Historic context
    11. In Albanian legislation, this provision is a novelty provided for the first time in the criminal procedural law. Pursuant to the legal provision of the CrPC prior to the entry into force of its amendments provided in Law No. 35/2017, dated 30 March 2017 and prior to the entry into force of the CCJC, children were adjudicated in absentia, the same as adults under the terms and conditions provided in Article 352 of the CrCP.
  • International acts
    12. In the international aspect, a number of instruments have provided and set the standard for the participation of the child in trial and exceptionally trial in absentia. Some of the international documents providing the above standards are as follows: 

     

    13. The UN General Assembly, Convention on the Rights of the Child, 20 November 1989, Article 12 underlines 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. 2. 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”. https://www.unicef.org/tfyrmacedonia/CRC_albanian_language_version(3).pdf last visited on 25 September 2017

     

    14. The UN General Assembly, International Covenant on Civil and Political Rights, 20 November 1989, ratified by law no. 7510, dated 08.08.1991, in Article 14 item 3 letter “c¸” and “d” and in item 4 highlights: “3. Everyone charged with a criminal offence shall be fully entitled to the following minimum guarantees, in full equality: (c¸) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.” http://www.magjistratura.edu.al/media/users/4/pakti%20per%20te%20drejtat%20civile%20dhe%20politike%20OKB.pdf  Last visited on 24 September 2017.

     

    15. The Committee on the Rights of the Child at the UN, General Comment No. 10 “Children’s rights in criminal justice”, paragraphs 43-45. http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf Last visited on 25 September 2017. 

     

    16. The UN General Assembly, in “The Beijing Rules” (Standard Minimum Rules for the Administration of Juvenile Justice), resolution 40/33, 29 November 1985, item 14 underlines: “14.2 The proceedings shall be conducive to the best interests of the juvenile and shall be conducted in an atmosphere of understanding, which shall allow the juvenile to participate therein and to express herself or himself freely.” http://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf  Last visited on 25 September 2017.

     

    17. 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, Article 13 underlines: “2.   Member States shall take appropriate measures to ensure that children are always treated in a manner which protects their dignity, and which is appropriate to their age, maturity and level of understanding, and which takes into account any special needs, including any communication difficulties, that they may have.” http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016L0343&from=EN last visited on 16 September 2017.
• International standards/International references/Best examples
  No Comment
• Legislative material
  No Comment
• Related articles
  18. Article 54 paragraph 4 of the Constitution

  CCJC

  19. Article 3
  20. Article 16 paragraph 3 and 5
  21. Article 19 paragraph 3 letters “a” and “ç”
  22. Article 40
  23. Article 41 paragraph 1
  24. Article 42 paragraph 1
  25. Article 50 paragraph 3
  26. Article 90

  CrPC

  27. Article 361/a
  28. Article 4 letters “c¸” to “e¨” of the Law no. 93/2014 dated 24.7.2014 “On inclusion and accessibility of persons with disabilities”
• Sublegal acts
  No Comment
• Decisions
  No Comment
• Literature
  29. Study: “Juvenile Justice in Albania: An analysis of the juvenile justice system and the situation of juveniles in conflict with the law in Albania”, was supported by UNICEF, in partnership with European Commission and Sida. http://www.crca.al/sites/default/files/publications/Drejtesia%20per%20te%20mitur.pdf  Last visited on 16 September 2017.
• Archive
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