Table of Content

• Comments
  • Purpose
    1. The purpose of this provision is to determine the position of the sexually abused victim and of the human trafficking victim in the criminal process as well as the approximation of the domestic legislation with the international one, regarding the special rights of these categories of victims.
  • Scope
    2. The scope of this article is to determine: 

    1. The special protection that the legislator guarantees for the sexually abused victim and the human trafficking victim;
    2. The special rights in relation to the victim of the criminal offence;
    3. The way how these rights are exercised.
  • Comments
    3. This Article emphases the importance given to the sexually abused victims and victims of human trafficking. Albania is not only obliged to follow special needs of the mentioned victims due to the acquis communautaire but also due to the fact that Albania ratified (and is in force for Albania since 2008) the Council of Europe Convention on Action against Trafficking in Human Beings.

     

    4. Article 58/b is a complementary provision of articles 58 and 58/a of the CrPC regarding the list of the rights of the victims of the criminal offence, avoiding those rights that are specific for the sexually abused victim and the human trafficking victim. It is important to emphasize the fact that even though the sexually abused victim as well as the human trafficking victim enjoy all the rights provided for in Article 58 of the CrPC, and if minor at the same time also rights provided for in Article 58/a of the CrPC, too, but also, to acknowledge that sexually abused victim, as well as trafficked persons are the major source of the evidence necessary to secure the conviction of traffickers. Moreover, they suffered the grave physical, sexual and psychological abuse that perpetrators of these offences typically inflict upon their victims. Accordingly, the legislator has given to these categories of the victims’ additional protection recognizing that victims of trafficking or sexually abused victims are often unwilling to assist in criminal investigations for fear of harm to themselves or their families. Therefore, it is very important that these victims are properly introduced with all rights they are having in the criminal proceeding and that proceeding authority as well as courts insure proper implementation of these rights given by the legislator.

     

    5. In letter a) of the first paragraph of the provision, the legislator provides for the right of the sexually abused victim and of the human trafficking victim to request to be questioned without delay by a person of the same gender if the victim so wishes. This means that the victim has to be asked already with the first contact with the proceeding authority whether she/he would like to be questioned by the same gender.[1] The reason that legislator has provided this right to these categories of victims is that success of interviews reflects, in part, how well the witness/victim and interviewer interact with each other. Ideally, the interviewer must gain the witness’s trust as someone who is concerned about the personal welfare of the witness and is not seen only as an evidence-gatherer. Sometimes for intimidated victim this goal is more easily reached if the victim is questioned with the person of the same sex as she is herself.

     

    6. To guarantee the non-revictimization of the sexually abused victim and of the human trafficking victim, in letter b), the legislator provides for as the exclusive right of the victim the right to refuse to answer questions related to his/her private life, in the case when they do not have an open relation to the criminal offence. This guarantee constitutes a diversion from the obligation to testify and in this case the person cannot be charged with legal liabilities, if she or he refuses to testify. However, previous sexual behaviour, the alleged ‘character’ or the current or previous occupation of the victim must, in general, be deemed irrelevant as evidence of whether or not the crime of trafficking or sexually violence has been committed. In interviewing the victim no questions should be asked that might suggest that the integrity of the victim is put into doubt, that call the victim to account or blame the victim for the crime committed to them. Shortly, this would mean that the victim that claims to be raped does not have to answer i.e.; how many sexual partners she/he had or whether she/he was an active prostitute. In case such a question occurs, judge should intervene forbidding such question and warning the victim to her/his rights.[2] The purpose of this provision is to avoid secondary victimization of the victim. Secondary victimization includes avoiding unnecessary repetition of interviews, visual contact between victims and defendants, the giving of evidence in open court and unnecessary questioning of the victim about her or his private life. However, it is important to emphasise that the need to protect victims from secondary victimization and further trauma, is based on an individual assessment of their needs, including factors like age, gender, health, disability, mental and psychological disorder, as well as the abuse and violations suffered such as torture, rape or other forms of sexual and gender-based violence.

     

    7. Letter c) of the provision stipulates the right of the sexually abused victim and of the human trafficking victim to require to be questioned through the audio-visual tools to avoid the direct contact of the victim with the defendant.[3] This right of the sexually abused victim and of the human trafficking victim is stipulated expressively by Article 361, paragraph 8 of the CPC, too. The questioning of the victim with audio-visual tools is conducted according to the provisions of Article 361, paragraph 7 of the CPC.

     

    [1] This provision is in harmony with the provision of Article 23, paragraph 1, letter (d) of Directive 2012/29/BE and Directive 2011/36/EU;

    [2] This provision is based on article 23, paragraph 1, letter (c) of the Directive 2012/29/BE, and on article 12, paragraph 4, letter (d) of the Directive 2011/36/BE; 

    [3] This provision is in compliance with Article 23, paragraph 3, letter (b) of Directive 2012/29/BE and Article 12, paragraph 4, letters (a), (b) and (c) of Directive 2011/36/BE.

  • Historic context
    8. For the historical contexts please see the comments under the article 58.

     

    9. Article 58/b has been added to the CPC to highlight the special protection that the legislator guarantees for the sexually abused victim and the human trafficking victim. This provision is based on the international standards stipulated by the Directive 2011/36/BE of the European Parliament and Commission, dated 05.04.2011 “On the prevention and fight against human trafficking and the protection of the victims and the replacement of the Framework Decision of the Commission 2002/629/JHA” (Directive 2011/36/BE) and Directive 2012/29/BE of the European Parliament and Commission, dated 25.10.2012 “On the determination of the minimum standards on the rights, the support and the protection of the victim of the criminal offences and the replacement of the Framework Decision of the Commission 2001/220/JHA” (Directive 2012/29/BE). But also, Council of Europe Convention on Action against Trafficking in Human Beings
  • International acts

    Directive 2011/36/BE of the European Parliament and Commission, dated 05.04.2011 “On the prevention and fight against human trafficking and the protection of the victims and the replacement of the Framework Decision of the Commission 2002/629/JHA”

    Directive 2012/29/BE of the European Parliament and Commission, dated 25.10.2012 “On the determination of the minimum standards on the rights, the support and the protection of the victim of the criminal offences and the replacement of the Framework Decision of the Commission 2001/220/JHA”

    Council of Europe Convention on Action against Trafficking in Human Beings.

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

  Analysis of the Justice System in Albania, June 2015, page 177, drafted by the High Level Experts attached to the Ad Hoc Commission for the Reform in the Justice System, http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, last accessed on 28.08.2017;

  Strategy for the reform in the justice system: https://www.reformanedrejtesi.al/sites/default/files/draft_strategjia_versioni_shqip.pdf, last accessed on 28.08.2017;

  Report on the draft-law “On some addenda and amendments to the Code of Criminal Procedure”, https://www.parlament.al/ëp-content/uploads/KODI-I-PROCEDURES-PENALE-Resized.pdf, last accessed on 28.08.2017;

   Law No.9642, dated 20.12.2006 “On the ratification of the Convention of the Council of Europe for measures against human trafficking”.

• Related articles

  Law:

  Articles 58, 58/a, 361, 361/a, paragraph 4 of the CPC.

• Sublegal acts
  No Comment
• Decisions
  No Comment
• Literature
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• Archive
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