Juvenile Justice Should Respect the Highest Interest of the Child

Today, on December 5, 2006, the Albanian Helsinki Committee organizes the round table discussion on "Respect for juvenile rights in criminal processes". 

The goal of the round table discussion is to present the main findings emerging from the monitoring that was carried out regarding respect for the rights of children who are authors of criminal offences at Albanian courts.

Invited to the round table discussion are judges from the monitored courts, prosecutors, lawyers, representatives of the Judicial Conference, the Ministry of Justice, the National Chamber of Advocates, jurists, representatives of the civil society and clinics offering legal services, representatives of international organizations operating in Albania, experts involved in the research, as well as AHC correspondents and activists.

The study covered 7 courts of the judicial districts of Tiranë, Fier, Elbasan, Gjirokastër, Shkodër, Korçë, and Vlorë and was conducted during the period September “ November 2006. Court decisions issued during 2005 and part of 2006 were studied and judicial proceedings taking place between October “ November 2006 were monitored.

Of 218 penal decisions issued by the courts of first instance, involving 292 adjudicated juveniles, the largest number belonged to the Tiranë judicial district court (164). The majority of adjudicated juveniles were convicted for committing offences against property, particularly minor burglaries. Nevertheless, there were also juveniles adjudicated for violent robberies, armed robberies, crimes against life caused by carelessness, use of falsified documents, penal offences against justice, such as failure to report a crime, false criminal reports, false testimony, etc.

41% of the adjudicated juveniles were of the age under 16 years old. The majority were male and inhabitants of urban areas. Most of them had 9-year education (136) or elementary education (65 juveniles). For the most part, the adjudicated juveniles had not been convicted previously (221 juveniles). 

The lack of necessary infrastructure, of the sub-legal basis for employing alternative options, the lack of institutions for the treatment of juveniles, the lack of necessary and sufficient premises for holding public proceedings, at some courts, particularly the countrys largest court of Tirana, the absence of psychological assistance for juveniles, create difficulties in implementing international standards and Albanian legislation requirements regarding juvenile justice. Nevertheless, Albanian courts have made positive efforts to respect children's rights in judicial proceedings and AHC strongly supports reforms in the interest of the child.

In spite of efforts made to improve respect for juvenile rights in penal proceedings, criminal justice for juveniles is faced with a series of problems:

1. Courts have made use of the obligation to appear for juveniles (80), but still, arrest in prison (96) and house arrest (39) are widely used.

2. Compared to the penal offences committed by juveniles and their danger, pre-trial detention periods are long.

3. In all studied decisions, juveniles had their lawyer selected by family members (195 cases) or appointed mainly by the prosecutor or the court (76 cases). However, defense mainly leaves to be desired.

4. Looking at court decisions, it is not clear whether juveniles were granted psycho-social assistance during penal proceedings.

5. About 50% of the adjudications were shortened adjudications, which indicates positive efforts by the judges. However, the majority of penal processes against juveniles were completed within a period of 5 months (122 cases) and 77 processes took place within a period of less than one month (77 cases).

6. The absence of other overseeing systems for juveniles forces the courts to make use of arrest in prison and convictions in prison. The prosecutor's office has mainly requested sentencing in prison (143 cases), in few cases sentencing by fines (34) or probationary suspension of the execution of decisions (79). In the majority of decisions issued by the courts, we found that convictions and measures issued by the courts coincide with those requested by prosecutors. The kinds of convictions issued against juveniles have mainly been those of imprisonment (138), by fine (35), by fine and imprisonment (9), and probationary suspension of the execution of decisions (82).

7. The majority of juveniles received convictions of 6 “ 10 months of imprisonment (49 juveniles), whereas 8 juveniles received 1-2 months in prison, but there were also courts that opted for much harsher convictions for juveniles such as sentences by 3-5 years in prison, or even 6-10 years. The study found out that these harsh sentences were issued by the courts of Fier, Vlorë, and Gjirokastër.

8. Although the law envisions the exclusion of juveniles from sentencing or the reduction of sentences under the minimum established by the court, such provisions were not used. Also, alternative measures for juveniles were not used much. This situation is a consequence of the lack of overseeing structures for the enforcement of alternative measures, more than of the lack of desire or knowledge of this possibility by the judges. The courts that applied the use of alternative measures the most are those of Tiranë, Shkodër, and Vlorë. Alternative measures were applied less in the courts of Fier, Elbasan, Gjirokastër, and Korçë.

9. During October 2006, we monitored also 18 court sessions with juveniles at the Tiranë judicial district court. During this month, the court only issued two sentences; the majority of scheduled sessions were postponed several times due to the failure of defendants, the prosecutor, witnesses, and lawyers to appear. There is no solemnity in the sessions (only 3 sessions took place in the special rooms). Ethics employed by judges was good both toward juveniles and other parties in proceedings.

10. There was no consistent care to ensure that final decisions issued by the judicial district courts included all data on the juvenile (sex, education, home address, judicial status, etc.). Almost all decisions do not specify whether the court conducts verifications on the personality of the juvenile.

Based on the above, the Albanian Helsinki Committee suggests to relevant institutions to take the necessary measures for Albanian juvenile justice to be focused on "the highest interest of the child", a principle that guides Albanian and foreign legislation.

To that end, AHC suggests that the following measures be taken:

• The Ministry of Justice should suggest to the President of the Republic to establish juvenile sections at the largest courts, particularly that of Tiranë, to consist of judges specializing in juvenile justice.

• We suggest to court chief justices to not make use of the right granted by the law "On the organization of the judicial power in the Republic of Albania" to transfer judges from one section to another when judges for juveniles are involved. 

• In appointing judges for juvenile cases, care should be shown to appoint female judges, in order to facilitate the questioning of juveniles on delicate issues.

• Greater care should be shown toward the drafting of judicial decisions in order to improve their reasoning and arguments in keeping with international standards and the practice of the European Court. To this end, AHC appreciates the continued training of judges, prosecutors, judicial police officers on juvenile issues, organized by the Magistrates School with assistance from different donors in Albania, and suggests that such training continue with an emphasis on better enforcement in practice of the law regarding juvenile justice.

• AHC applauds the initiative taken to make changes to the Penal Code and asks the Ministry of Justice to accelerate this reform that began several years ago.

• Considering the conditions of pre-trial detention facilities and prisons in Albania, as well as the damages that the arrest and imprisonment of juveniles may cause, it would be useful for the court to keep in mind the fact that the pre-trial detention of juveniles should be an extraordinary measure and, if indispensable, the period should be as short as possible.

• Courts should demonstrate greater care with regard to the conduct of trial sessions. Postponement of trial sessions in general and of those involving juveniles in particular seriously harms the public's trust in the justice system, while also seriously violating citizens' rights in the process.

• AHC appreciates the penal policy pursued by many judges with regard to alternative measures for juveniles. On the other hand, we suggest to the Government of Albania to invest in the establishment of social centers for the treatment of children and the opening as soon as possible of the juvenile school.

• In the circumstances of the absence of training centers for juveniles in conflict with the law, AHC suggests to the Ministry of Justice to identify private social services functioning in Albania and to find the modalities for cooperating with them in treating children, in cooperation with the Ministry of Labor and Social Affairs.

• AHC requests from the National Chamber of Advocates to organize training courses for lawyers that represent juveniles in judicial proceedings and to find mechanisms that enable the provision of free legal aid by qualified lawyers.

• AHC appreciates legal and social services offered by civil society organizations and suggests to the Government of Albania to support their services not only morally, but also financially.

The monitoring of court decisions and the organization of the round table discussion were made possible thanks to the support by the SOROS Foundation in Tirana and CORDAID.

For further information, contact:

Ms. Vasilika Hysi, Albanian Helsinki Committee

Etilda Saliu, Albanian Helsinki Committee

Address:  Rr.Gjin Bue Shpata

      Pall 5/1, Ap. 4

      P.O. Box 1752

      Tirane

Tel:   04 233671

E-mail: office@ahc.org.al