J U V E N I L E J U S T I C E I N A L B A N I A A N A N A L Y S I S O F T H E J U V E N I L E J U S T I C E S Y S T E M

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1 J U V E N I L E J U S T I C E I N A L B A N I A A N A N A L Y S I S O F T H E J U V E N I L E J U S T I C E S Y S T E M A N D T H E S I T U A T I O N O F J U V E N I L E S I N A L B A N I A ISBN: SWEDISH INTERNATIONAL DEVELOPMENT COOPERATION AGENCY

2 June 2007, Tirana

3 JUVENILE JUSTICE IN ALBANIA JUVENILE JUSTICE IN ALBANIA QENDRA PER MBROJTJEN E TE DREJTAVE TE FEMIJEVE NE SHQIPERI Children s Human Rights Centre of Albania CRCA Lead researcher: Prof. Asoc. Dr. Arta MANDRO This study and publication are supported by UNICEF, in partnership with European Commission and Sida, in the framework of the Juvenile Justice Reform programme in Albania Study findings in this publication are of the authors and do not necessarily reflect the views of UNICEF, Sida and EC Design & Press: ViSi Design ISBN June 2007, Tirana 2

4 ACKNOWLEDGMENTS The Children s Human Rights Centre of Albania - CRCA would like to thank everyone for their contribution to this report, especially: - UNICEF office in Albania that made this research possible. Without their extraordinary support this research would not have been possible. We want to thank especially Mr. Leon Shestani, Mrs. Mirlinda Bushati and Mrs. Floriana Hima, for their ongoing contribution in terms of ideas and opinions. - As. Prof. Dr. Arta Mandro for preparing this research, which is part of a larger set of ongoing researches in the field of juvenile justice in Albania, and for determining the methodology and the continuous review of the contents of the research. - Mrs. Alma Tafani, Mrs. Aferdita Deda, Mrs. Alma Maksutaj and Mrs. Blerina Metaj, for successfully collecting the data and evidence, as well as for the preparation of certain parts of this research. - Staffs of Ministry of Interior and Ministry of Justice for allowing us the access to the quarters where children and juveniles are held. A special acknowledgment goes to Mr. Bajram Ibraj, Mr. Albert Dervishi, Mrs. Alma Gjurgji, Mrs. Elona Haska, Mrs. Diana Kasapi and Mr. Ilir Zhurka who assisted CRCA with official records regarding child and juvenile delinquency in Albania. - Mr. Altin Hazizaj, who reviewed this material on several occasions, thus making a great contribution in terms of editing and the terminology used in the research and directly contributing to the study of juvenile criminal policy in Albania. - A special acknowledgment goes for Mr. Thornton Barkley and Mr. Guillaume Bigaouette for their commitment in reviewing this material in terms of terminology used and the editing of its English language version. - Mr. Fatos Rexhaj who made the translation of this research possible. 3

5 JUVENILE JUSTICE IN ALBANIA - Staff of the CRCA Office for Free Legal Assistance to Children that made possible the collection of required and detailed information regarding the situation of children in conflict with the law in Tirana. - All children and juveniles in police stations and pre-trial detention centres and prisons who openly spoke to us about their lives, problems, and concerns. - Representatives of Police Stations, Pre-trial Detention Centres and Prisons in all visited counties who openly spoke about their problems and concerns regarding the administration of the juvenile justice system. - All NGO s and Agencies in Albania, that offered their thoughts and suggestions during public discussion about the administration of juvenile justice system. 4

6 ABBREVIATIONS J. J. Juvenile justice MSA CRC H.C.J. CC CPC UN UDHR ECHR Memorandum of Stabilization and Association of Albania with European Union Convention on the Rights of the Child High Council of Justice Criminal Code of the Republic of Albania Criminal Procedure Code of the Republic of Albania United Nations Universal Declaration of Human Rights European Convention on Human Rights ECHR DCM LRC EU AHC RA INSTAT European Court of Human Rights Decision of Council of Ministers of the Republic of Albania Legal Reforms Committee European Union Albanian Helsinki Committee Republic of Albania National Institute of Statistics 5

7 JUVENILE JUSTICE IN ALBANIA 6

8 CONTENT Chapter 1 ALBANIA AND CHILDREN Introcuction International standards related to criminal juvenile justice National legislation and administration of juvenile justice in Albania Chapter 2 CHILDREN AND JUVENILES IN CONFLICT WITH THE LAW Evolution of the juvenile justice system in Albania Institutional Framework of the Administration of juvenile justice in Albania Legal Process of juveniles Sentence or punishment? Chapter 3 SITUATION OF JUVENILES IN POLICE STATIONS, PRE-TRIAL DETENTION CENTRES AND PRISONS Chapter 4 VIOLENCE TOWARDS CHILDREN IN CONFLICT WITH THE LAW Legal aspects of investigations and pursue of cases of violence to juveniles Role of Ombudsperson in protecting and promoting the rights of children in conflict with the law

9 JUVENILE JUSTICE IN ALBANIA Chapter 5 THE INFLUENCE OF JUVENILE DELINQUENCY ON PUBLIC POLICIES The influence of juvenile delinquency in terms of improvement of public policies Tendencies in the development of juvenile delinquency in the course of years Chapter 6 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS Findings and Conclusions regarding legal framework Recommendations based on our analysis of the criminal justice system when dealing with juveniles ANNEXES Annex 1 List of interviewed officials for the purposes of the research Annex 2 Statistical data Annex 3 Bibliography

10 GENERAL OVERVIEW To draw a comprehensive picture of the juvenile justice system in Albania, it is a rather complex task. The system covers issues concerning the law and its standards, institutions and structures, their level of competence and responsibility, human resources, their qualifications and insufficiency, policies and the way to address them, as well as the way of implementing laws and subjective attitudes towards certain policies etc. Completing an objective analysis of the administration of the juvenile justice system entails that one has to cover a number of components. It is not only a question of interpretation of laws but also a matter of understanding decisions based on such interpretation. It also means to analyze reports and results from monitoring system, to understand suggestions made by international partners, political documents from the government, the different levels of coordination, flexibility of the structures, financial terms etc. Such an analysis and its deductions have to respond to questions such as: Were children s highest priorities taken into account? Is the juvenile justice system well or badly administered? Are the international standards respected? Analysis of the administration of juvenile justice is of great importance since juvenile delinquency is not only a legal problem, but from the social perspective it also resounds as a critical issue which affects the quality of life in the future. Under such terms juvenile delinquency should be a matter of interdisciplinary research. Criminologists, sociologists, psychologists, physicians, biologists, educators, etc. have their own share of contribution in making the system efficient, in its achievements and values etc. Juvenile delinquency is a source of problems for the future. How many juveniles are arrested annually? How many juveniles go to court? How many juveniles are maltreated in prison? How many juveniles are abused by the legal system? How safe and sufficient is the present-day system in terms of prevention and rehabilitation measures? Are there any repeated offenders? After every answer to these questions there should be another question: WHY? What is the problem? Given answers are indicators of the standards that are met. After 1990, the entire Albanian legislation and justice system underwent a process of continuous reform. After ratification of the CRC, ECHR and after the approval of the Constitution in 1998, reforms of the legal and justice system had not only a quantitative but also a qualitative aspect. 9

11 JUVENILE JUSTICE IN ALBANIA These documents and other documents also enabled safe steps towards well-defined standards. Reforms are still on track while even after all these years of transition and development, one can still ask whether the present-day system is adequate or no. Under present terms, the administration of the juvenile justice is still under way. This research might serve to identify difficulties, legal loopholes and reasons for the system to get improved and move to a higher stage. There will always be new challenges which is the reason why the system has to be able to respond properly, fast and at a lower cost (when we use the term cost we not only mean financial costs but also and most of all the ones related to future generations) to the present and future requirements. In every Article, procedure, institution, structure and substructure, in every individual, etc. the child s best interest should be stressed and evaluated. In presenting the criminal juvenile justice system, we made sure to guarantee: Objectivity related to the presentation of the administration of juvenile justice through verifications based on various sources; Holding a balance between policies, law and practice; Presentation of updated information; Identification through information on defects, unclear matters, incompatibilities to the standards, etc. Presentation of conclusions and realistic recommendations to be carried out in the ongoing reality of our country. This research is not the first and will not be the last of its kind. Acquaintance with the legislation, the structure, and the system of juvenile justice will enable effective protection of juveniles in legal proceedings and those not in proceedings (because of their age) but who still have to be treated through educational programs. Through our analysis, we came to identify deficiencies which result from various causes. Through analyzing and evidencing we have contributed to the improvement of roles, laws and structures. We have mainly focused on the legislation specifically related to juvenile offenders but have not ignored legal situations when juveniles are victims of criminal acts. To do so, international legal concepts and the relevant Albanian national legislation are presented. The structures and procedures of the juvenile justice system in Albania as well as the living conditions and treatment in pre-trial detention and detention centres for juveniles, violence against children in conflict with the law, elements related to the effect of the juvenile justice system upon children, are also dealt with. Having a comprehensive coverage over this issue, the research is a useful document to those who have to enforce the law, want to know more about the law, make policy or are involved in the judicial reform process etc. The present document can also be a valuable tool for anyone interested in legal matters regarding juveniles. 10

12 ALBANIA AND CHILDREN OBJECTIVES AND LEGAL STANDARDS OF THE JUVENILE JUSTICE SYSTEM CHAPTER 1 ALBANIA AND CHILDREN Objectives and legal standards of the juvenile justice system 1. Introduction Case 1. A group of year old boys were playing and saw some fruits in the backyard of a house nearby. As they were tired and sweaty, they sneaked in to get the fruits but were heard by the owner. The man started to run after them and was hit in the head with a wooden stick by one of the boys who did so because he was scared. The owner fell unconscious and remained in a coma for a week at the hospital. The Police identified the group of juveniles as thieves. Case 2. A.F. is 17 years old and comes from a poor family. While travelling by bus, he spotted the opened case of an old woman and noticed he could easily grab her cell phone. After some hesitations, he decided to take the phone but the woman realized what was happening and reported it to the bus conductor who stopped the bus. The incident was reported to the police and the phone was found in the young man s pocket. Case 3. After leaving a party, a group of year old boys saw a girl walking alone in the dark. They started to tease and scare her. She tried to get away but by doing so, she provoked the boys who forcefully grabbed and raped her. The police found the girl in a terrible condition, with a necklace that she had torn from one of the boys who raped her in her hand. The boy s name was engraved in the necklace. Case 4. Minor A.Z. is charged of having committed a robbery with other people. He was apprehended on the scene of the crime (a grocery store). 11

13 JUVENILE JUSTICE IN ALBANIA Theses cases are only few examples of the many different forms juvenile delinquency can take. How are they going to be managed by the justice system? What will happen to these juveniles? In the administration of juvenile justice, legislation is the first thing to take into account and to analyze. In order to determine to what extent the Albanian legislation meets international standards regarding juvenile justice, the present chapter will have the following structure: the first part (2 A) contains a list of international treaties on criminal juvenile justice; in the second part (2 B) are found principles and standards taken from those international conventions; in the third part (3) will be presented problems related to the implementation of those treaties and standards in Albania; finally, the fourth part (4) reviews the Albanian legislation regarding juvenile justice and will present brief thoughts on this. 2. International standards related to criminal juvenile justice A) International legal framework. Compulsory, non-compulsory and political nature of international rights standards A number of international instruments are binding upon state parties and are thus compulsory in character. Some others are of different nature and are known as soft law. In order to illustrate this distinction, one could say that treaties imply legal obligations for parties whereas resolutions and recommendations are softer. As for political dispositions, they are somewhere in the middle. However, such distinction is not as clear as it seems. States can indeed turn simple guidelines into legal obligations when there is a positive outcome to do so. The European Convention on Human Rights contains strong legal dispositions monitored by a court, (the European Court of Human Rights). The Convention on the Rights of the Child also contains legal obligations, the compliance of which is monitored by the Committee on the Rights of the Child, itself created by the convention. However, some of the recommendations have an essential character. There are great expectations that these dispositions, in the form of recommendations, will be respected and observed by the states. We will first present United Nations international instruments before doing a brief review of regional human rights instruments from the Council of Europe and the European Union (EU). Even though Albania is not a member state of the EU, it signed the Memorandum of Stabilization and Association (MSA) with the European Union in 2006 which produces a number of obligations with respect to recognition, harmonisation and coordination of its legal framework and structures with these standards. 1 B) International and regional instruments regarding juvenile justice 1 Main sources of the community right are treaties and directives. Execution mechanism of the community right is the European Commission. The European Court of Justice has jurisdiction over the cases brought from a member state against another member state in case of violation of the treaty, from an EU institution against another as well as from a citizen or organisation against EU institution. European Court of Justice does not resolve appeals of individuals against member states. Nevertheless, a national court can ask for opinion from the European Court of Justice regarding an execution of a community right in a particular case. 12

14 ALBANIA AND CHILDREN OBJECTIVES AND LEGAL STANDARDS OF THE JUVENILE JUSTICE SYSTEM 1. United Nations instruments UN Convention on the Rights of the Child (1989) ratified on February 27, 1992 and its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (came into force on January 18, 2002, but Albania has not ratified yet); Universal Declaration on Human Rights (UDHR) (1948); Declaration On Children s Rights; United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules, 1985); United Nations Rules for the Protection of Juveniles Deprived of their Liberty (The Havana Rules, 1990); United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines, 1990); United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules, 1990); ILO Convention concerning Minimum Age for Admission to Employment (C138, 1973) ratified by Albania in 1999; ILO Convention (no. 29) Concerning Forced Labour (1930); International Covenant on Civil and Political Rights (adopted in 1966; accession by Albania in 1991); Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (adopted in 1984; accession by Albania in 1994; law no. 7727/ ). Also important to mention the following: Committee on the Rights of the Child, Reservations, Declarations and Objections relating to the Convention on the Rights of the Child, CRC/C/2/ Rev.8, December ; Human Rights Committee, General Comment 17, Article 24, 1989, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.5, April 26, 2001; Economic and Social Council, Guidelines for Action on Children in the Criminal Justice System, resolution 1997/30, Annex, July 21, 1997; Economic and Social Council; Main Directives regarding Child as Victim or Witness of a Criminal Act, One of the recommendations of the Committee on the Rights of the Child is for Albania to fully comply with standards from the above instruments, especially articles 37, 40 and 39 of the CRC as well as to bind itself to United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules 1985), The Riyadh Guidelines on the prevention of juvenile delinquency, The Havana Rules on the protection of juveniles deprived of their liberty and the Vienna Guidelines for Action on Children in the Criminal Justice System, bearing in mind day of discussions of the Committee in 1995 on the administration of juvenile justice 2. To summarize, all above documents point out the following: - Well-being of the child/juvenile should always be a priority and circumstances as well as the nature of the criminal act should always be taken into account when deciding a sentence; - Promote reintegration of juveniles and help them develop a constructive role in their society; - Develop alternatives for detention and institutional treatment (even when the case is still in 2 Final Recommendations of the Committee on the Rights of the Child Observation. Session

15 JUVENILE JUSTICE IN ALBANIA process) which respects the rights of the individual as well as reduce the likelihood of the child to commit over again criminal acts; - Ensure that juveniles are treated in their community in the best of the ways. If they are held in pre-trial detention centres, they shall be separated from adults and all necessary measures should be taken to enable regular contacts between them and their families. When released, they should receive all necessary support to ensure their social reintegration into the community; - Necessity to have a qualified and trained staff at each level of the system; - Underline the importance of prevention of juvenile delinquency and make it a priority for the society in general (family and community). The well-being of juveniles from early childhood should the central point of every preventive programme. Community oriented programmes and services for the prevention of criminal acts amongst juveniles should be established. 2. Council of Europe instruments Human Rights documents from the Council of Europe refer to the United Nations treaty principles as well as other relevant document regarding the protection of the basic human rights. The European Convention on Human Rights (ECHR 3 ) and Protocols no. 1; 2; 4; 6; 5; 11;7; The European Social Charter (revised) 4 ; The European Convention on the Exercise of Children s Rights; The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 5 and Protocols no.1 and 2; European Convention for monitoring of sentenced or paroled individuals law no.8724/ Recommendations and resolution of the Council of Europe concerning juvenile justice: Resolution (78) 62 on Juvenile Delinquency and Social Change; Recommendation (85) 4 of the Committee of Ministers to member states On violence in the family:; Recommendation (87)19 of the Committee of Ministers to member states On prevention of organised crime ; Recommendation (87) 20 of the Committee of Ministers to member states On social reactions to juvenile delinquency ; Recommendation (87) 21 of the Committee of Ministers to member states On assistance to crime victims and prevention of victimisation ; Recommendation (88)6 of the Committee of Ministers to member states On social reactions to juvenile delinquency among 3 Convention guarantees the right to life (article 2), the right to liberty and security of a person (article 5) and the right not to be subjected to torture or to inhuman or degrading treatment or punishment (article 3). ECHR has a direct effect on internal laws and courts should rely on dispositions of the European Convention and jurisprudence of the Court in Strasbourg. Signed on , ratified and enforced on (law no.8137, date ) 4 European Social Chart (revised) signed on , enforced ; 5 Signed on , ratified on and enforced on Law no. 8135/

16 ALBANIA AND CHILDREN OBJECTIVES AND LEGAL STANDARDS OF THE JUVENILE JUSTICE SYSTEM young people coming from migrant families ; Recommendation (91)11 of the Committee of Ministers to member states On sexual exploitation, pornography and prostitution of, and trafficking in, children and young adults ; Recommendation Rec (2000) 20 of the Council of Europe On the role of early psychosocial intervention in the prevention of criminality June 2000;Resolution of the European Parliament on child trafficking and child soldiers. 3. European Union recommendations Admission to the EU comes along with a number of obligations. The process of integration makes obligatory the compliance with international standards regarding human rights and justice for juveniles. Even though the EU instruments are applicable only in EU member countries, non-eu member countries, for example our country, whose objective is to secure full membership have to harmonize their legislation with EU standards. The National Plan on harmonising the domestic legislation to the EU legislation and the implementation of the MSA provide for a number of legislation measures regarding human rights. It means that the entire national legislation is being reviewed in order to identify sectors where harmonization is to be done. Such work will be carried out by the work group created by the Ministry of Justice and by the Commission of Legal Reform (CLR) 6. -In this field it is important to mention Recommendations of the European Commission on: Sexual tourism; Child Pornography; Measures against sexual tourism; Human trafficking and sexual abuse of children; Assistance to missing children and sexually abused children; Draft Decision of the European Commission concerning the fight against the sexual abuse of children and child pornography. 3. Main international principles and standards regarding the rights of the child in conflict with the criminal law These principles are found in block or piece by piece in all international instruments. The CRC is a broad legal instrument which includes all central principles regarding children s rights and standards related to juvenile justice. The message that comes out from these documents is that while being different and still developing, a child can still go through rehabilitation, has different needs than that of adults and must thus receive a different treatment from the one a grown-up would receive. In this context, the priority should be to provide alternative social measures as opposed to institutional treatment. Every child has to be dealt with individually. There is a generally strong interest from the public regarding juvenile safeguard and well-being. One can explain this by the fact that the world of tomorrow and its social standards depend very much on what is being done 6 See National Plan to harmonize the legislation with that of the EU and implementation of the SAA. Republic of Albania. Council of Ministers. Tirana See order of the Prime Minister no.90 date regarding duties and functions of the CLR and order no. 143, date regarding comoposition of the CLR. 15

17 JUVENILE JUSTICE IN ALBANIA today for juveniles in terms of awareness-raising, education, reintegration, safeguard, support, etc. Albania ratified the UN Convention on the Rights of the Child (CRC) (1989) on February 27, Issues related to juvenile justice are mainly found in articles 37, 39, 40 of the CRC. It presents indeed a complete list of obligations for member states. Even though each provision of the convention deals with a specific issue e.g. article 40 which refers to juvenile justice all of them are part of a bigger structure. Since they are interrelated, the CRC must be seen as a construction where every single part is of crucial importance. Article 40 of the CRC should be treated simultaneously with general principles related to children s rights, : article 2 which specifies that all rights are to be recognized and protected without any discrimination; article 3(1) which underlines the importance of taking into account the best interest of the child in all services; article 6 which guarantees the right to life; article 12 and the right to express views freely and for them to be given due weight in accordance with the age and maturity of the child, directly or through a representative and in a manner consistent with local procedures. Closely related to the application of article 40 of the CRC are: article 16 right to privacy; article 19 protection from any kind of violence; article 20 alternative care, article 25 periodic review of treatment; article 39 rehabilitation and reintegration of victims. All above and other articles give shape to the main standards regarding children s rights. Article 37 of the CRC protects the child against torture and other cruel treatment and punishment. Death penalty and life imprisonment shall never be used against a child; arrest, detention or imprisonment should be carried out according to the law and only used as a measure of last resort and for the shortest period of time possible; every child deprived of liberty should be treated humanly, kept separately from adults and have regular contacts with family; a child deprived of liberty is entitled to legal assistance and the right to challenge the legality of the deprivation of liberty, and finally the right for a prompt decision on its case. A) Convention on the Rights of the Child: Standards, guarantees and determined obligations concerning juveniles -Standard of special treatment for every child suspected, accused, or recognized as being in conflict with the law, in order to promote the sense of dignity, to respect the basic human rights and freedoms, taking to the account the child s age as well as its reintegration and desire to play a constructive role in society (article 40/1 CRC). -Standard of consequences with no retroactive effect. No child can be suspected, charged or labelled as having infringed the law as a result of actions or omissions that were not prohibited by domestic and international law at the time they were committed (article 40/2a CRC). -Guarantees in legal proceedings for children alleged or accused of having infringed the penal. These guarantees include (article 40/2b CRC): 16

18 ALBANIA AND CHILDREN OBJECTIVES AND LEGAL STANDARDS OF THE JUVENILE JUSTICE SYSTEM Presumption of innocence: everyone is presumed innocent until proven guilty according to law and procedure (article 30 of the Constitution of the Republic of Albania); Right to be informed immediately and directly of charges, and if suitable through parents or legal representatives, and to receive legal assistance or any other assistance needed for the defence (article 31 of the Constitution of R. A); Examination of the case without delay by a competent, independent and impartial authority or judicial body according to law, in the presence of legal or appropriate assistance, unless it is considered not to be in the best interest of the child, because its age or situation, in presence of parents or legal representatives; Treatment of children in accordance with their well-being condition, and also in relation to their situation and violation of the law. Not to be forced to testify or to confess guilt; Ask questions or to question adverse witnesses of prosecution. Right to appeal, to have the free assistance of an interpreter; Right to privacy; Out of court settlement and procedures B) International Covenant on Civil and Political Rights (ICCPR) The ICCPR which was adopted in 1966 and came into force in 1976 (ratified by Albania in 1991) also contains important standards such as: Juvenile prisoners should be separated from adults and their case brought as speedily as possible for adjudication (article 10.2b.); Procedure for non-adults will take account of their age and the desirability of promoting their rehabilitation (article 14.4); Children have the right to be defended without any discrimination as to race, colour, etc., are entitled to a name, have the right to acquire a nationality and shall receive the necessary protection when if parents are divorced (article 23 and 24). C) Guidelines on juvenile justice, Vienna 1997 Economic and Social Council, Guidelines for action on children in the criminal justice system, Resolution 1997/30, 21 July 1997, also states: Creation of specialised institutions, specific procedures and other appropriate responses for juveniles; Need for laws, procedures, organs and special institutions for children; Establishment of a minimum age below which children cannot bring upon themselves criminal liability. Priority of care, probation within a family, programs of general and professional re- education; promotion of restorative justice; reduction of institutionalization; special care for vulnerable groups; control of institutions. 17

19 JUVENILE JUSTICE IN ALBANIA D) Economic and Social Council guidelines regarding Child as Victim or Witness of a Criminal Act (2005) A very important document from the ECOSOC in which we can find the following: Right to be treated with dignity and compassion; protection from discrimination; right tobe informed; right to be heard; right to receive assistance; right to privacy; right to safety; right to get re-educated; right to profit from preventive measures. E) UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) 7 1. Preventing juvenile delinquency is a crucial part of the fight against crime in society. Juvenile can develop non-criminal attitudes and respect for society by being involved in constructive activities for their community. 2. Effective prevention of juvenile delinquency requires effort from society as a whole in order to offer a positive social environment for children and adolescents, while respecting and protecting their personality in early ages. 3. Juvenile should have an active role in society, be seen as partners and should not be treated as mere objects one can control. 4. At every level, preventive programs and national legislation should have the well-being of juveniles as a priority, this from a early childhood. 5. The need and importance of progressive and preventive crime policies as well as the systematic review of social measures should be well known and set as a priority. of crime and systematic review of measures should be known and valued. The elimination of non-constructive punishment would then become possible. Such policies and measures should include: a) Wide range of opportunities, especially in education, to meet the various needs of juve niles and thus to support their individual development, especially for those more at risk and in need pf special care and attention; b) Specialized methods and philosophies to prevent crime, based on law, proceedings, in stitutions and network which can offer services to motivate children s personality and give them support when in conflict with the law; c) Official interventions taking into account juveniles interest, driven by equality and justice; d) Protection of the well-being, the development, the rights and the interests of all juveniles; e) Behaviour or acts of a juvenile not in line with rules and values of community are often part of human growing and maturity process and tend to decline in time spontaneously or in their adulthood; 7 Adopted and proclaimed by General Assembly resolution 45/112 on December 14,

20 ALBANIA AND CHILDREN OBJECTIVES AND LEGAL STANDARDS OF THE JUVENILE JUSTICE SYSTEM f) Acknowledgment that in most of time, in the opinion of experts, determination of a young men as deviant or offender it is often addressed by the development and objective attribute of their behaviour; 6. Services and community-based programs should be established to prevent juvenile delinquency, especially in places where no assistance is offered yet. Formal agencies of social control are to be used as measure of last resort. F) United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) 8 Standard minimum rules intend to pave the way for the creation of a specialized juvenile justice system with the support of specific and new legislation. The main features of The Beijing Rules are: capital and corporal punishment shall not, in any circumstances, be used against a juvenile; impartial and human treatment; take into account the juvenile's views; imprisonment is to be used only as a measure of last resort and for the shortest possible period of time deprivation of liberty should be only used for serious cases; a prompt decision has to be made on the case; specialization of justice institutions; reintegration of juveniles. G) United Nations Rules for the Protection of Juveniles Deprived of their Liberty (The Havana Rules) 9 Some of the main principles established in this document regarding the protection of juveniles deprived of their liberty are: Deprivation of liberty shall be a measure of last resort and should be as short as possible; A juvenile cannot be deprived of its liberty without objective legal motives; Creation of opened institutional units should be a priority; Juveniles deprived of their liberty should be prepared for regaining freedom and return to their community. It underlines the importance of educational programs which can facilitate rehabili tation; Guarantees of regular contacts with the family; Training of personnel of institutions or centres; 8 Adopted by General Assembly resolution 40/33 on November 29, Adopted by General Assembly resolution 45 / 113 on December 14,

21 JUVENILE JUSTICE IN ALBANIA 3. Understanding conventions and international standards and difficulties to implement these instruments in legal procedures The number of human rights and children s rights conventions Albania has ratified is significant. According to the Constitution, these legal instruments are part of the national legislation and their implementation is mandatory. However, one has to underline the fact that the level of knowledge of these instruments and the use judges, prosecutors and lawyers make of them is limited. As a result, standards and rules contained in these documents are not properly implemented by the justice system,(after monitoring legal proceedings, it is not difficult to see that these conventions are rarely being referred to). Reasons behind the difficulties of implementing human rights standards are manifold. The Official Gazette, for instance, used to mention laws through which conventions were approved without providing information on the content and substance of those conventions. This changed in 1998 after the adoption of the new constitution. Since 1998, it is obligatory to publish the content of international treaties that the country has ratified. As mentioned above, their number is significant, which can be a problem. The Centre of Official Publications has prepared a list of the conventions not yet translated but up until now there has not been a real initiative to do so. Furthermore, there are cases of translations not properly done and thus not in accordance with the original document. At the Ministry of Justice, the translation sector is responsible to provide accurate translations of legal documents. The lack of an indexed and updated online system makes the search for cases of interest a difficult and lengthy process. Despite efforts, the Centre of Official Publications cannot produce such program that would be updated on a daily basis while keeping the information properly indexed so as to keep the system user-friendly 10. At the moment, there is only a manually organized index (thematic and chronologic) which does not meet professional standards. The Centre does monitor site users and offer feeding to the Official Gazette but computerized system making legal information easily available has yet to be set up. It should also be underlined that even the jurisprudence of the ECHR is practically unknown to Albanian judges despite continuous care by the Council of Europe, the European Commission and the European Centre to translate decisions in Albanian. As a result, European (human rights) case law is rarely referred to in Albanian courts. 11 For lawyers, prosecutors, judges, officers of judicial police, and other involved actors, the recognition of these international instruments is only a first step. The implementation and enforcement of human rights standards have to follow if significant progress is to be made. Under such terms, it is useful to mention how international human rights could then be used: Direct execution of the international right. Such direct execution of the international right allows bypassing a national rule of a lesser importance (see article 122/2 of the Constitution of RA); 10 See or 11 Jurisprudence of the Court of Strasbourg. Ledi Bianku. Tirana

22 Interpretation of the national right in light of the international right; ALBANIA AND CHILDREN OBJECTIVES AND LEGAL STANDARDS OF THE JUVENILE JUSTICE SYSTEM Referral to the international right to help resolve a matter based on the national right; Creation of principle by a judge (see unifying decisions of High Court and their nature) inspired by the international right 12 ; 4. National legislation and administration of juvenile justice in Albania One characteristic of Albanian legislation is that legal dispositions regarding juveniles are found in many codes, laws and dispositions. There is no comprehensive legislation or Code with regard to juvenile justice. There is no unified legal system exclusively for the children. Some laws treat children in a special way, but still fragmentary. Furthermore, juveniles and adults are often treated the same way in those legal documents. In our analysis of the relevant national legislation, we will begin by reviewing normative acts in force on the Albanian territory, as determined by the Constitution of the Republic of Albania (article 116). As of article 116 of the Constitution of R.A.: Normative acts that are in force in the R.A. are: a) The Constitution b) Ratified international agreements c) Laws d) Normative acts of the Council of Ministers. It should be noted that a number of legislative reforms are underway in Albania in order to comply with standards set by the CRC. However, incoherence and loopholes in the legal field are just one part of the problem. As pointed out by the Committee on the Rights of the Child, the modest and slow implementation of international rules in the practical sense is the main concern. The justice system structural problems when dealing with juveniles as well as the lack of specialized judges, prosecutors, police, lawyers and social workers in cases of juveniles in conflict with the law, are responsible for such slow implementation. 13 A) The Constitution of the Republic of Albania and standards related to juvenile justice The Constitution is the supreme law in which Albanian values and political principles are found. According to article 3 of the Constitution «[ ] dignity of the individual, human rights and freedoms, social justice, [ ] are the bases of this state, which has the duty of respecting and protecting them.». In fact, the whole Albanian legal framework is based on those constitutional rights and principles which is one of the reasons why legislative activity was so intense following the adoption 12 See Kristaq Traja, Legal Nature of decision of the Supreme Court, Legal Life School of Magistrates, no. 1. Tirana 2005, p Concluding Observations of the Committee on the Rights of the Child. Session 38 21

23 JUVENILE JUSTICE IN ALBANIA of the Constitution in Its main values and principles had to be indeed reflected by new legislation. Furthermore, the country had to comply with the international and European human rights standards which served as solid bases for the respect of human rights by the judicial system.. In the Albanian Constitution, terms such as all, anyone, no one and everyone are employed to show that protections provided by the text make no exception and discrimination whatsoever. The second part of the constitution deals precisely with the fundamental human rights and freedoms and is divided into four chapters. When talking about juvenile justice, it is important to remind that: «The fundamental human rights and freedoms are indivisible, inalienable and inviolable, and stand at the basis of the entire legal order. The organs of public power, in fulfilment of their duties, shall respect the fundamental rights and freedoms, as well as contribute to their realization.» (article 15); «The life of a person is protected by law» (article 21); «No one may be subjected to torture, cruel, inhuman, or other degrading treatment or punishment.» (article 25); «No one should be deprived of his or her liberty The freedom of a person shall not be limited..» (article 27); «Marriage and family enjoy special protection of the state» (article 53/2); «1. Children, juveniles, pregnant women and new mothers are entitled to special protection by the state Every child has the right to be protected from violence, abuse and exploitation, especially when under the minimum age for work» (article 54). There is no definition in the Constitution regarding categories as minors, juvenile and child. The term minor is only used in article 27/ç: «[ ] Freedom may not be limited except in the following cases ç) for the supervision of a minor for purposes of education or for escorting him to a competent organ.» Child is mentioned in articles 54 and 59/ ç and juvenile in article 54/1. Chapter 2 in Part II of the Constitution of the Republic of Albania underlines guarantees and basic principles to respect when a juvenile is involved in legal proceedings. Here are some of these guarantees: Presumption of innocence: One is presumed innocent until proven and declared guilty in a final decision (article 30) Retroactive effect (article 29): No one may be accused or declared guilty of a criminal act that was not considered as such by law at the time of its commission. No punishment may be given that is more severe than that which was contemplated by law at the time of commission of the criminal act. A favourable criminal law has retroactive effect. Right to a fair and public trial (article 42): The freedom, property, and rights recognized in the Constitution and by law may not be infringed without due process. Everyone, to protect his Constitutional and legal rights, freedoms, and interests, or in the case of an accusation raised against him, has the right to a fair and public trial, within a reasonable time, by an independent and impartial court specified by law. Right to moral and physical integrity (article 25): No one may be subjected to cruel, inhuman or degrading torture, punishment or treatment. 22

24 ALBANIA AND CHILDREN OBJECTIVES AND LEGAL STANDARDS OF THE JUVENILE JUSTICE SYSTEM Deprivation of liberty (article 27): No one s liberty may be taken away except in the cases and according to the procedures provided by law. Ex: For the supervision of a minor for purposes of education or for escorting him to a competent institution. Constitutional rights and guarantees of a person deprived of freedom as well as during penal procedures (articles 28, 31, 32, 33, 34): notification of the reasons for this measure, and notification of accusation and legal rights; trial within a reasonable time; must be sent within 48 hours before a judge for reasons of suspicion of committing a punitive act, or to prevent it; right to appeal to court decisions; right to defense; right to have a translator; right to question witnesses; right to be heard before trial; No one may be declared guilty on the basis of data collected in an unlawful manner; No one may be punished more than one time for the same criminal act nor be tried again; double jeopardy; B) Relation between the Constitution and international standards on human rights The Constitution has determined the position of these instruments in the internal system and their execution 14. We can outline the following: Self-executable character (or not) of the international right. Every international agreement that is ratified becomes part of domestic law from the moment it is published in the Official Gazette of the Republic of Albania. The international treaty is part of national law so no implementing legislation is needed to enforce it, except in some cases when it is not self-executable and its execution requires the promulgation of a specific law. International agreements are superior to domestic laws. When a ratified international agreement states that its normative rules are to be in force in the country, it takes precedent over national legislation if the two are in conflict with one another. As a result, judges and others involved in the legal system should enforce these international norms regardless of contradiction or repetition that can exist with national laws. C) Codes and laws on juveniles justice in Albania Codes and laws: The Criminal Code (CC) law no. 7885/ ; The Criminal Procedure Code (CPC) law no. 7905/ ; On rights and treatment of imprisoned persons law no. 8328/ changed with law no. 9071/ ; On execution of legal decisions law no. 8331/ ; On judicial police law no. 8677/ changed with law 9241/ ; On the of internal control service of the detention system law no. 9397/ ; On the organization and function of Ministry of Justice law no. 8678/ ; On state police law no. 8553/ , Employment Code law no. 7961/ changed with law no. 9125/ ; On pre university education system law no. 7952/ with subsequent changes; On organization of legal power in the Republic of Albania law no. 8436/ , modified with law no. 8546/ and 8656/ ; On the police of deten- 14 "The R.A. applies international law that is binding upon it" (article 5 of the Constitution of the RA). 23

25 JUVENILE JUSTICE IN ALBANIA tion centres law no. 8321,/ modified with laws no. 8757/ and 9375/ Legal by-acts: Important in this field are the decisions of the Council of ministers: For the approval of regulation for detention centres no. 96/ ; For the transfer of the pre-trial detention system under the authority of the Ministry of Justice no. 327/ ; Regulation on treatment of ones held in pre-trial detention (1999) that was executed until followed by a decision of Minister of Justice (no. 3705, date ) For the approval of regulation of pre-trial detention ; CMD no. 182 date For the transfer of prison hospital under the Ministry of Justice ; CMD no. 411 date For the creation of a vocational training centre for prison personnel ; etc. 1. Situation After seeing the legislation which meddles with juvenile justice, we can now identify more specifically the relevant dispositions from each of these legal documents. We can say that The Criminal Code includes the following: - Juvenile as injured/victim of a criminal act. Article 50 of CC: criminal acts against a juvenile present an aggravating circumstance; Article 79 of CC: intentional murder of a juvenile; Article 83/a of CC: serious threat for revenge to a juvenile; Article 100 of CC: sexual or homosexual relations with a juvenile; Article 101 of CC: forced sexual or homosexual relations with a juvenile of age years; Article 108 of CC: infamous or shameful acts against juveniles; Article 109&2 of CC: kidnapping and keeping a juvenile as hostage; Article 117 of CC: pornography; Article 124 of CC: abandonment of a juvenile; Article 125 of CC: denial of support; Article 127 of CC: unlawfully taking of the child Article 128/b of CC: trafficking of children Article 129 of CC: inducement of a juvenile to commit a criminal act. - Juvenile as responsible/ author of an offence. Of particular importance: Age of criminal responsibility; Differentiated rules sentencing juveniles for criminal acts; 24