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

Article 92: Admission of guilt by the child

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1During investigation and trial, the child defendant may not be compelled to make statements of self-criminal liability.

2The silence of the child during the investigation and trial may not be considered as an admission of guilt.

3If the child admits guilt, the Court, in any case, shall make sure that such admission is not for reasons related to the age, development and ability of the child to perceive and understand fear of a possible conviction or prolongation of the duration of cross-examination.

Table of Content

      1. The purpose of Article 92 of the CCJC is to guarantee the right of the child defendant, not to incriminate him/herself, which is closely related to another important right, the right to remain silent.

       

      1. Another purpose of Article 92 of the CCJC is to protect the child’s best interest when he/she accepts the commission of the criminal offence by reminding the court to analyse the causes and motives of such admission and whether this is related to the fear of a possible punishment or fear of a prolongation of interrogation.

       

      1. This article aims to be in harmony with the right to non- self-incrimination of a child as a right guaranteed in the Constitution of the Republic of Albania and the criminal procedural legislation. According to Article 32, paragraph 1 of the Constitution of the Republic of Albania, it is provided that ‘No one may be compelled to neither testify against himself or his family nor confess his guilt.’ This approach also applies to international instruments such as Article 40 (2) (b) (iv) of the Convention on the Rights of the Child,[1] Article 14 paragraph 3 letter “e” of the International Covenant on Civil and Political Rights, the ECHR, etc.

       

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

      1. Article 92 of the CCJC consists of three paragraphs, which contain the obligations for the proceeding bodies of the investigation and trial phases (hence the judicial police, the prosecution office and the court) regarding the guarantee of the child’s right not to be self-incriminatory, as determined in its first paragraph.

       

      1. The second paragraph of Article 92 guarantees the right to remain silent regarding the charge and the prohibition to consider such silence as a guilty plea. According to the third paragraph, the court precisely verifies, in the case of the guilty plea by the child, the authenticity of such admission by analysing the reasons which led the child to accept the charge, if the child has accepted the accusation because of fear of a possible punishment or because of the fear created by the prolongation of interrogation period.

       

      1. This Article is not referring to any other legal provision. However, it is worth underlining that Article 92 of the CCJC should be read together with Article 9 of the CCJC, which provides the principle of the presumption of innocence, as mentioned in a number of national and international legal instruments such as Article 30 of the Constitution, Article 40 of the Convention on the Rights of the Child; paragraph 29 of the preamble to Directive 2016/800/EU “On procedural safeguards for children suspected or accused in criminal proceedings”.[1]. Article 92 is also in accordance with Article 37 of the CPC which provides the procedural regulation in respect of statements which indicate self-incrimination which during preliminary investigations before the child is considered a defendant, and Article 38 paragraph 2 of the CPC addressing the method of interrogation of the defendant. Thus, the child’s right for not being self-incrimination will be guaranteed.

       

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

      1. Competent Bodies under this Article, regarding the approach of the child towards the criminal offence, does impose obligations on competent bodies of the investigation phase: the judicial police, the prosecution office and the court. As we pointed out in item B on the “Structure”, even if it does not refer to the laws or other Articles of this Code, the procedural bodies need to consider Article 9 of the CCJC, Article 37 of the CPC, which provides the procedural regulation in relation to statements that indicate self-incrimination during preliminary investigations before the child was considered a defendant, and Article 38, paragraph 2 of the CPC, which shows the method of interrogation of the defendant.

       

      1. Regarding notion “the child defendant may not be compelled, hence, through physical or psychological violence, to make statements that reflect self-incrimination under Article 92/1 of the CCJC, we underline that this is an obligation for the investigation and trial authorities. They cannot force the child defendant to admit guilt. The procedural bodies mentioned in Article 37 of the CPC have the obligation that when the child, who has not yet been accused , makes statements before them, that can lead to accusation , to interrupt the questioning and warn the child that according to these statements, investigations may be conducted against him/her and a defence lawyer must be assigned to him/her. Previous statements cannot be used against children. Physical violence against children is one of the most widespread forms of violence. There are still illegal and prohibited practices that classify the exercise of physical violence as an effective means of “discovering the truth”, among them: blows, punching and hair tweaking, ear plucking, slapping body or head, pulling and pushing forcibly, suffocation, hitting objects on the body, hitting the head, kicking, crashing head or body into the wall, the use of weapons as e.g. heavy objects, sharp tools or firearms against a person, scratching, bone breakage and burning. There is intensive use of psychological violence against children. Forms such as: verbal threats, shouts of intimidation, threats using objects, threats of isolation, threat of beating and violence, the use of nicknames and offensive actions death threats or curse, etc - are the most obvious expressions of psychological violence to children. But this list is not exhaustive. All of them are prohibited.

       

      1. The provision of paragraph 1 of Article 92 derives from the right of the defendant to be presumed innocent under Article 9 of the CCJC and the obligation of the prosecution office to prove the guilt. Specifically, under the first paragraph of Article 92 during the investigation and the trial, the prosecution office and the court are obliged to conduct the questioning of the child defendant in such a way that he is not obliged to demonstrate self-incrimination, which means that he shall not be forced to accept the commission of a criminal offence. As mentioned in the General Comment No. 10 of the Committee on the Rights of the Child[1], the procedural authorities during the questioning of the child defendant should not exercise any type of pressure or violence of any kind, whether physical or psychological, aiming at the admission of guilt by the children. The child is a fragile and delicate person precisely because of his age and his mental, psychological, intellectual development, stress causing the prolongation of the questioning, the level of understanding, the fear from the consequences of punishment, the possibility of a suggested possibility of his/her imprisonment, quick suggestion, etc. In some conditions and circumstances the child may be forced to admit guilt even when it is not true. Therefore, when the child is questioned under Article 76 of the CCJC and Article 361/a of CrPC the defence lawyer, the psychologist, the legal/procedural representative or a trusted person shall be present according to Article 3 paragraph 16 17,and paragraph 18 of the CCJC respectively. In addition, the method in the questioning of the child it is of particular importance as it shall ensure that the statements of the child are provided freely and not under constraint. Thus the proceeding body as provided in Article 38, paragraph 2 of the CPC, shall not use, methods or techniques to influence freedom of will or to change the ability of memory and evaluation of facts.

       

      1. The right to be silent, it should be highlighted that it is one of the very important rights of due legal process for the defendant, as mentioned by the European Court of Human Rights in the Murray v. The United Kingdom case (1996) as quoted below in the International Standards section. Besides the right to speak and to be heard and participate during the criminal process, it is also a right to remain silent. Thus, when the child defendant exercises the right to silence pursuant to Article 92 paragraph 2, the proceeding authority, is prohibited from considering it as an admission of guilt. Silence just implies that the child does not make statements about the event, the circumstances of the fact, and the charge against him. The child has the right to refuse to comment or to give a response when interrogated, whether before or during court proceedings. The right includes that the judge cannot make any comments or infer conclusions regarding the refusal by the defendant to answer questions before or during a court proceeding.

       

      1. In this sense, according to the third paragraph of Article 92, the court, when analysing the statements and the admission of guilt of the defendant, must assess the will of the child and the credibility of his or her statement given the age of the child, the duration of the interrogation, the presence of the defence lawyer, psychologist, legal/procedural representative or trusted person. Specifically, the court shall consult and be assisted by the psychologist regarding the techniques and methods of questioning the child defendant by analysing the following three elements:[a] Age of the child: Age may be considered as an indicator of the role and position of the child in society and is one of the main indicators to understand what the child is capable to do or to influence in society; [b] The development and ability of the child to perceive and understand the fear of a possible punishment: The development and intellectual ability of the child to understand or perceive which fear is real and which one is unreal. In specific terms, fear is a disturbing emotion caused by imminent danger, evil, pain, etc. Children experience difficulties in realistic judging of a situation as a result of their limited ability to handle emotions when faced with stressful or unusual situations; [c] Fear of prolonged interrogation period. The child’s limited ability to handle stressful situations may make the child have wrong perceptions. A child may be more afraid of dealing with the situation than of the real consequences of the situation. Under these circumstances the child may develop certain behaviour to escape from the present situation by altering the truth.

       

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

      1. In Albanian legislation, this disposition is a novelty. According to the previous legislation, the legal provision in force, namely Article 37 of the CPC, prohibits the continuation of the interrogation of a person who makes statements of self-incrimination. Hence, in principle, the self-incrimination of the defendant is prohibited, but the provision of Article 92 of the CCJC is a novelty since for the first time it deals and analyses this right in a detailed manner concerning children.
      1. In the international aspect a number of instruments have set the standards for the prohibition of child’s self-discrimination. Some of the international documents mentioning the above standards are as follows:

       

      1. UN Convention on the Rights of the Child, 20 November 1989, Article 40 (2) (b) (iv) underlines that children can “Not (to) be compelled to give testimony or to confess guilt …” Link:  https://www.unicef.org/tfyrmacedonia/CRC_albanian_language_version(3).pdf last visited on 16th September 2017

       

      1. The UN Committee on the Rights of the Child, General Comment No. 10 “Children rights in criminal justice”, respectively paragraphs 56-58. Link: http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf last visited on 16th September 2017

       

      1. The UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, Article 14, paragraph 3, letter “e” provides that “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality (e):(g)Not to be compelled to testify against himself or to confess guilt”. http://www.unmikonline.org/regulations/unmikgazette/03albanian/Ahri/ACovenantCivilPoliticalRights.pdf last visited on 16th September 2017

       

      1. The Parliament and the European Council, Directive 2016/800/EU “On procedural safeguards for children who are suspects or accused persons in criminal proceedings”, 11 May 2016, paragraph 29 of the Preamble “Where a child who was not initially a suspect or accused person, such as a witness, becomes a suspect or accused person, that child should have the right not to incriminate him or herself and the right to remain silent, in accordance with Union law and the ECHR, as interpreted by the Court of Justice of the European Union (Court of Justice) and by the European Court of Human Rights. This Directive therefore makes express reference to the practical situation where such a child becomes a suspect or accused person during questioning by the police or by another law enforcement authority in the context of criminal proceedings. Where, in the course of such questioning, a child other than a suspect or accused person becomes a suspect or accused person, questioning should be suspended until the child is made aware that he or she is a suspect or accused person and is assisted by a lawyer in accordance with this Directive.” Link: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016L0800&from=EN N last visited on 16 September 2017.
    1. The European Court of Human Rights, in the case Murray versus the United Kingdom, on decision dated 8th February 1996 in paragraph 45 highlighted: “Although not specifically mentioned in Article 6 (art. 6) of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (art. 6) (see the Funke judgment cited above, loc. cit.).  By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6 (art. 6).”

     

    https://hudoc.echr.coe.int/eng#{"dmdocnumber":["695857"],"itemid":["001-57980"]} last visited on 20 September 2017.

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  • Article 30 of the Constitution provides that: 

    “Everyone is deemed innocent until proven guilty by a final court decision” 

     

    Article 3 of the CCJC provides that:

    …

    1. “Legal representative” is the parent, relative or child’s guardian, who participate in criminal justice proceedings involving children to protect interests of the child. 
    1. “Procedural representative” is the person as per the meaning defined in the law in force on the rights and protection of the child who represents the child procedurally, according to the provisions of this Code. 
    1. “Trusted Person” is the adult person indicated by the child and accepted by the competent body who accompanies the child throughout the stages of criminal proceedings.”

    … 

    Article 9 of the CCJC provides that: 

    “1. Every child in conflict with the law shall be presumed innocent until guilt is established by a final court decision.

    1. Any doubt on the charges against the child shall be deemed in his/her favor.” 

     

    Article 37 of the CPC provides that:

    “If a person who is not taken as a defendant makes statements before the proceeding authority, that raise suspicion of guilt against him, the proceeding authority shall interrupt the questioning and warn him that, following such statements, an investigation may be carried out on him, and advise him to appoint a lawyer. Statements made by the person cannot be used against him.”

    Article 38, item 2 of the CPC provides that:

    “Methods or techniques which may influence the freedom of determination or alter the capacity to recall and evaluate facts shall not be used, even with the consent of the defendant.”

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  • 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

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Manjola Xhaxho
Arta Mandro, Koraljka Bumči, Renate Winter