KOMENTARI ELEKTRONIK
CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF ALBANIA   |   7905

Article 58-a: The rights of the minor victim

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1The minor victim of a criminal offence, besides the rights provided for in Article 58 and other provisions of this Code and the special legislation on the minors, shall have the right to:

abe accompanied by one person of his/her trust;

bconfidentiality of his/her personal data;

cask through the representative that the hearing takes place without the presence of the public.

2The proceeding authority shall treat the minor victim of the criminal offence taking into account her age, character, and other circumstances, in order to avoid the harmful effects on her future education and development.

3If there is the possibility that the victim is a minor and the age is unknown, he or she will be presumed to be a minor.

4The minor victim shall be questioned without delay by people specialized for this purpose. When possible and appropriate, the conversation shall be recorded with audio-visual recording tools, pursuant to the provisions of this Code. This recording may be used as evidence in the criminal proceeding and shall be evaluated along with other evidence pursuant to the criteria provided by article 361/a, paragraph 4 of this Code. When the minor victim is under 14 years of age, the conversation is held in premises adjusted for him.

Table of Content

      1. The purpose of this provision is determining the standing of the minor victim in the criminal proceedings, as well as approximating the Albanian legislation to the acquis communautaire and international Conventions. However, rights of the minor victim are foreseen in more detailed manner in the Code on Criminal Justice for Children.[1]

       

      [1] See chapter V of the CCJC

      1. The scope of this Article is determining: 
      1. Special protection that the law maker is guaranteeing for the minor victim of the criminal offence;
      2. Special rights as compared to the victim of the criminal offence provided in Article 58 of CrPC;
      3. Way of assuming these rights
      1. Same as in Article 58, this provision does not provide any definition of the term minor victim. Although in the judicial practice so far, the term minor was used in the CrPC to imply always the person under 18 years of age, and there has been no instance of any different interpretation, as long as a definition of this term would be made, the reference might be made to various national and international acts. However, the difference may be seen by the term child, which was so far used in the judicial practice differently. Nevertheless, it has to be mentioned that definition for “child” has been foreseen in the CCJC Code. Respective definition is in line with international Conventions and acquis communautaire (CCJC Article 3).

       

      1. Article 58/a, in paragraph 1, refers to the special legislation in this field, inter alia even to Code of Criminal Justice for Children (CCJC ), which was approved by the Law no 37/2017, dated 30.03.2017 and having entered into effect on 01.01.2018. In Article 3, paragraph 5, a minor victim is defined to be any person under 18 years of age having sustained a moral, corporal or material damage as a consequence of a criminal offence.

       

      1. It has to be mentioned that the CrPC provides as a novelty that all adult defendants accused of criminal offences committed against minors (this means minor victim) shall be examined by the criminal section for minors, the same as minor defendant would be (Article 13 paragraph 4 CrPC).[1] Having said that, it has to be mention, on the one hand, article 28 of the CCJC, which foresees that in case minor victim is involved, at least one judge dealing with minor has to be a judge specialised for children, and on the other hand, Article 5 of the CCJC which foresees application of the CrPC whenever it is more favourable for children. Thus, it is clear that the more favourable is that such cases are adjudicated by the same section for minors, as minor defendant would be adjudicated. However, Article 28 of the CCJC might find its application in the courts where such a section does not exist, and it is seen as judicial economy. In such cases, respective file would not to be transferred to the other district court that has established “sections for minors”. Anyway, this has to be left to the practice to interpret this unclearness of the two Codes and its provisions.

       

      1. The first paragraph of the Article is a referral provision, defining that the minor victim enjoys all the rights provided for in Article 58[2] and in the Code of Justice for Minors. Moreover this article foresees some additional rights given to the children. In letter a) of par. 1, the minor victim has a right to be accompanied by a person of his/her trust. This rule was based on the standard being set out in the Convention of Lanzarote and Directive of 2012/29EU. The purpose is that in case the child is abused by his/her parent or legal representative or custodian, or even with one of the close relatives, they shall have the possibility to be accompanied by the person he/she trust. This could be not only their grandparents, relatives, but also older brother or sister, neighbour or a friend of their family, as long as the latter are persons of trust of the juvenile and is accepted by the court. The later comes out from the article 3 of the CCJC paragraph 18 and article 19 paragraph 3 of the CCJC.

       

      1. In letter b) par 1, the provision guarantees the secrecy of the data of the minor, such being a right provided for in Article 31, par. e) of the Convention of Lanzerote. The protection of privacy of the child incur the ban of public disclosure of any information which might give effect to the identification of the child.[3]

       

      1. In letter c) of par. 1, the provision has provided for the right of the minor victim to seek the conduct of the judicial hearing without the presence of the public. This provision has to be seen differently from Article 340 par. 2 letter b, having in mind that minor victim could appear in criminal process in two different ways. First way is when a criminal offence is committed against minor, such as for example criminal offence when minor is sexual abused (Article 100 of Criminal Code). In that case minor is called “primary victim” and judicial hearing, even when the defendant is adult, shall be held without public, as foreseen in the article 340 paragraph 2 letter b. Close hearing has been provided for also as an obligatory, in such case, in article 39, par. 3, of CCJC. Apart from that situation, minor victim could appear in a criminal process as so called “secondary victim” for example, if the minor victim appears after his/her parent have been murdered. Minor victim in later situation can even appear as an eye witness! The latter case criminal offence should not be seen as a criminal offence committed against minor victim in a strict sense and therefore adult defendant would not be adjudicated in front of the section for minors. In that case hearing would not be held as a closed hearing (Article 340 par 2 letter b) but in an open hearing. However, even in such cases, the legislator gave a possibility for minor victim to be questioned without public being present, if his/her legal guardian so requires. The reason for this is secondary victimisation of minor as well, bearing in mind that every judicial hearing might occur as a stressful situation and might affect further his/her personal development.

       

      1. In paragraph 2 of the provision, the lawmaker has provided for the obligation of the proceeding authorities to treat the minor victim of the criminal offence while taking account of the age, personality and other circumstances, to the effect of avoiding the detrimental consequences for their future development and education.[4] It is well-known that abiding by this obligation requires the establishment of the human capacities being specialised not only in the field of minors, but also in treating the victims of the criminal offence. Right given in this paragraph is in line with the general principles given to the child victim in Article 33 of CCJC. 

       

      1. Paragraph 3 determines the rules for the presumption of the victim that they are considered as a minor in the events where their age is not known and there is a doubt regarding this fact.[5] The same rule has been foreseen in Article 7 of CCJC. The law maker has, in paragraph 4 of the provision, reflected the provisos of Article 35 of the Convection of Lanzerote, aims at guaranteeing the interrogation of the minor victim as soon as possible and in the most appropriate ways and methods, thus avoiding the psycho-emotional intrusion or their-victimisation.[6] It is exactly to giving effect to this purpose that the lawmaker has provided for the interrogation of the minor victim to occur as soon as possible subsequent to the moment of the event or its detection and only by persons being specialised in interrogating the minors, who shall, as a rule be psychologists, clinical specialists, specifically where the minor is a victim of a sexual crime or exploitation. Moreover, lawmaker does not call it “interrogation” but “interviewing”, giving by this expression more softer meaning. Further on lawmaker encourages interviewing of the minor victim through the conveyance of the audio-visual devices “whenever this is possible and appropriate”. This videotaping shall be conducted in accordance with the provisions contained in Article 361/a, of CrPC. Questioning of minors by videotaping and then reproducing has been questioned in front of the ECHR and for purpose of this article it has to be emphasize that the videotape of the first police interview that was shown during the trial and appeal hearings and that the record of the second interview was read out before the District Court and the audiotape of that interview was played back before the Court of Appeal are considered sufficient to have enabled the applicant to challenge statements of the witness and his credibility in the course of the criminal proceedings.[7] 

       

      1. This restriction of using video -taped recordings has been provided to the effect of guaranteeing the principle of the adversarial proceedings and putting any piece of evidence to the judicial debate, thus infringing the right to the due process, such being guaranteed by Article 6, par 1, of ECHR and Article 42, par 2, of the Constitution. However, we can highlight, the decision (Bocos[8]): “The Court further reiterates that the use in evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6, provided that the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statements or at a later stage of the proceedings”.[9]

       

      1. In line with that requirements, Article 361, par. 4, CrPC has provided for, that the registration of the interrogation of the minor victim during investigations may be allowed as an evidence during the trial (this would mean that the minor victim would not be called and questioned again during the trial) even where the defendant and their defence lawyer do not grant their consent, provided that: they have addressed questions to the minors during the first questioning, even through professional persons having conducted the interrogation (psychologists, social workers) and the expert has evaluated that the repetition of the interrogation of the minor may infringe his psychological situation. The lawmaker has, in such a case granted priority to the protection of the minor, despite a full adversarial principle has not being implemented if the defendants’ lawyer has had the possibility to interrogate the minor. This means that the prosecutorial authority should take care that defence lawyer is invited to the interrogation of the minor whenever this interrogation is about to be convened and video recorded as foreseen in Article 58/a.[10] It has to be pointed out also Article 39 paragraph 4 letter c) of the CCJC which says that minor victim can be questioned again only when this is necessary in order to avoid secondary victimisation. This is extremely important when the child is a victim of a sexual abuse. In the latter case acquis communautaire recommends strongly the same principle.[11] However, the relevance of this evidence, like any other evidence shall be determined by the court, evaluating in the account of further evidence.

       

      [1] See also Article 28 of CCJC

      [2] See the comments to Article 58 of CrPC for more information

      [3] See comments under Article 21 CCJC

      [4] This provision is in line with Articles 1 and 24 of the Convention of Lazarote

      [5] This provision is based on Article 35, par 3, of the Convention of Lanzerote.

      [6] Article 24 of the Directive 2012/29/EU and Article 15 of the Directive 2011/36/EU

      [7] S.N. v. complain of Sweden, Application no. 34209/96, dated 02.07.2002, paragraph 52.

      [8] Bocos-Cuesta v. Netherlands, Application no. 54789, dated 10.11.2005, paragraphs 68, 71-73.

      [9] Bocos-Cuesta v. Netherlands, 10.11.2005, pars 68 and 71 para 72 – 73.

      [10] See for instance Decision of ECHR, S.N. v. complaint of Sweden, 02.07.2002, pars 47-50.

      [11]  Directive 2011/92/EU, Article 20 paragraph 3. 

      1. By the amendments of the Law no 35/2017, the criminal procedural law recognised as procedural subjects the aggrieved person due to the criminal offence, which was provided for in Article 58 of CrPC and other connected provisions, while no specific provision regarding the minor aggrieved party due to the criminal offence being in place. At the same time the procedural law did not manage the guarantee the protection being required for the minor victims in international acts being ratified by the Republic of Albania, as well as the European standards contained in the acquis communaitaire and international ones.

       

      1. Due to this reason, the lawmaker approved, in the course of the criminal justice reform, the CrPC and subsequently the Law no 35/2017, whereby providing, in a concrete provision the recognition of the rights of the minor victim, thus adding Article 58/a.

       

      1. Article 58/a was added up in the CrPC in order to highlight the special protection that the lawmaker grants to the minor victim of a criminal offence. This provision was based on the international standards being established for the juvenile victim by the UN Convention on the Rights of the Child, ratified by the Law no 7531, dated 12/11/1991, Council of Europe Convention on the Protection of Children against the sexual exploitation and abuse, ratified by the Law no 10071, dated 09.02.2009 (Convention of Lanzerote), Council of Europe Convention on the Protection of Children, ratified by the Law no 10425, dated 02.06.2011, Directive 2011/92/EU of European Parliament and Council dated 13.12.2011 “On combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA” (Directive 2011/92/BE), Directive 2011/36/BE of European Parliament and Council dated 05.04.2011 “On preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA” (Directive 2011/36/BE) and Directive 2012/29/BE of European Parliament and Council dated 25.10.2012 “On establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA” (Directive 2012/29/BE).

       

      1. Provision of Article 58/a became relevant in the intermediate period of 1 Aug 2017 (upon the law no 35/2017 entering into effect) through to 1 Jan 2018, as CCJC entered into effect, since until that moment the provisions of CCJC, despite serving as an orientation, were not applicable. Consequently, as long as the CCJC has not entered into effect, the law enforcement bodies will apply the provisions of Article 58/a of CrPC. Upon the CCJC entering into effect, such being a special statute in this field, its provisions shall have priority against the provisions of CrPC.
      1. The amendments effected to the domestic legislation, initially with CCJC and subsequently with the Law no 35/2017 guarantee its compliance with the international standards. However, it remains important for the state to guarantee the institutional, financial and practical level the infrastructure specifically for issues connected to the legal and psychological support of the minor victims due to the criminal offences. This is due to the fact that guaranteeing the rights provided for in the law cannot be left with the possibilities of the non-profit making organisations offering these services, but the state should provide for them.

       

      1. The main international acts in this field are the following: 

      UN Convention on the Protection of the Rights of the Child, ratified by the Law no 7531, dated 12.11.1991. 

      Council of Europe Convention for the Protection of the Children against the Sexual Abuse and Exploitation, ratified by the Law no 10071, dated 09.02.2009 (Convention of Lanzerote). 

      Council of Europe Convention on the Protection of the Rights of the Child, ratified by the Law no 10425, dated 02.06.2011. 

      Directive 2011/92/EU of European Parliament and Council dated 13.12.2011 “On combating the sexual abuse and sexual exploitation of children and child pornography and replacing Council Framework Decision 2004/68/JHA”.

      Directive 2011/36/EU of European Parliament and Council dated 05.04.2011 “On preventing and combating trafficking in human beings and protecting its victims and replacing Council Framework Decision 2002/629/JHA”. 

      Directive 2012/29/EU of European Parliament and Council dated 25.10.2012 “On establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA”.

  • Decisions of the European Court of Human Rights 

    1. ECHR has a consolidated case law regarding the balancing of the juvenile rights and the rights of the defendant in proceedings. Certainly, the protection of the juvenile victim should not infringe the due process which has been guaranteed by Article 6 of ECHR.

     

    1. Bocos-Cuesta v. Netherlands, Application no. 54789, dated 10.11.2005, paragraphs 68, 71-73, https://hudoc.echr.coe.int/eng#{"itemid":["001-67230"]} (last seen 12.11.2017)

     

    1. S.N. v. complain of Sweden, Application no. 34209/96, dated 02.07.2002, https://hudoc.echr.coe.int/eng#{"itemid":["001-5674"]} (last seen 12.11.2017).
    1. Analysis of Justice System in Albania, June 2015 , page 177, drafted by the Senior Experts Group at the Ad Hoc Parliamentary Committee for Justice System Reform, http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf visited for the last time on 27.08.2017;

     

    1. Strategy for justice system reform https://www.reformanedrejtesi.al/sites/default/files/draft_strategjia_versioni_shqip.pdf, visited for the last time on 27.08.2017;

     

    1. Explanatory Report to the draft law ‘On some addenda and amendments to the Criminal Procedure Code”, https://www.parlament.al/wp-content/uploads/Resized.pdf, visited for the last time on 27.08.2017.
    1. Law: 

    Articles 58, 340, 361/a, of CrPC. 

    Articles 33, 35, 39, 41, 102, 43, 82, 136 of CCJC.

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Joana Qeleshi
Koraljka Bumči