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Scientific Study, 2012
2. History of the Juvenile Criminal Proceedings in Kosova
3. The development of Juvenile Criminal Proceedings in Kosova
4. Juvenile Justice Code
5. Main Characteristics of the Preparatory Procedure for Juveniles
6. The Role of the Public prosecutor in the Juvenile Procedure
6.1 The Preparatory procedure for the Juveniles
7. Diversity measures
8. Educational measures
9. Imprisonment of minors
10. Execution of remedies and punishment
Kosova has had the matter of work with juvenile perpetrators of criminal offences Juvenile Criminal Law of Kosova (in further JCLK), UNMIK Regulation no 2004/8 of April 20 2004, as the mentioned are participant in criminality, in general. Difficulties that have appeared during the course of the work with juvenile perpetrators of criminal offences raised the issue of improvement of the mentioned. During the work of the respective commissions, it has been concluded that JCLK should be replaced by JJC.
The initiatives were raised by judges, prosecutors and other agencies who, along with representatives of the science, would work in direction of compiling of Juvenile Justice Code.
The Juvenile Justice Code (in further: JJC), no 03/L-193, has been compiled and entered force, upon adjustments made by JCLK, on April 20th 2004. The adjustment have been evidenced during the course of the work, thus it has been worked in direction of derogation respectively clarification of the provisions causing difficulties, in order to make them more practical for work.
Key words: Juvenile Criminal Law of Kosova, Juvenile Justice Code, improvements, provisions, initiatives
Working in the subject, I have treated certain main characteristics of the criminal procedure concerning juveniles, in accordance to the Juvenile Justice Code (in further: JJC), taking into consideration that in Kosova, a desirable progress has been made in this direction.
As Kosova, by the end of the war on June 12 1999, emerged with devastated institution and destroyed infrastructure, there was more than a necessary need for commencement of constitution of the self-governing bodies, in order to have an organized citizen’s life.
Primarily, it has been worked on functionalization of the role of the interim international administration, based upon the UNMIK regulation no 1/99, of June 25 1999, by respecting the recognized international standards, as well as by empowering of the Kosova laws. Nevertheless, in article 3 of this regulation, the rights of Kosova citizens have been drastically violated, as it said: “ the laws of Kosova, which have been in force in its territory prior to March 24th 1999 shall continue to me implemented in Kosova, unless in contradiction to the standards as stipulated by article 2 ”. There were great dissatisfactions caused, as in Kosova, as of 1989 one by one, all institutions of Kosova have started to be ruined; discriminatory laws have emerged to be introduced in all fields - judiciary, economy, health, education etc. - to be continued after the war, also. Therefore, the regulation has generated a great dissatisfaction amongst Albanians, who reacted loudly, until the next regulation was rendered.
The UNMIK Regulation no 24/99 of December 12th 1999 has improved the existing regulation; in Article 1, item B, inter alia, says “ the law applicable in Kosova shall be … the law in force in Kosova on 22 March 1989 ”, with further explanations, until article 2.
JJC, except for the matters it treats and has treated previously, also deals with diversity and educational measures, imprisonment for juveniles etc. Professional enhancement and further training of the prosecutors, judges as well as of the representatives of other institutions, should continue with an added pace.
I have stride, throughout the topic, to present chronologically development and implementation of the preparatory procedure for juveniles in Kosova.
In Kosova, until promulgation of JJC1, applicable was JCLK2, as well as other provisions of laws on criminal procedure referring to work of subjects in the juvenile proceedings, according to UNMIK Regulation no 01/993 and 24/994.
Taking this situation into consideration, it has been worked on promulgation of new laws, in order to have Kosova finally be separated from application of laws on an inexistent state. Juvenile Criminal Law of Kosova (in further: JCLK) has been promulgated, upon UNMIK Regulation no 8/2004, on April 8 2004. It has been evaluated as a great achievement, as along with Criminal Code of Kosova, Criminal Procedure Code of Kosova, Law on Execution of Criminal Sanctions, definitely the legal continuity of an inexistent state - former Yugoslavia and their application in Kosova has been terminated. By application of JCLK, the gap created in the field of work with juvenile perpetrators has been fulfilled. Both theoreticians and practitioners were interested on application during the work, thus upon conclusion of the difficulties faced, there were attempts made in direction of promulgation and finalizing of the JJC. The efforts concerning promulgation of JJC were based on the need of facilitation of work through making legal provisions more concrete.
The criminal procedure concerning the juvenile perpetrators, as the most sensitive category of the society, requires harmonization and adaptation of the legal provisions in sense of the Constitution of Republic of Kosova (in further: CRK)5 as well as other international acts and agreements. Legal provisions of JJC, international instruments and acts offer legal definition of the juveniles, signifying a person who, at the time of commitment of the criminal offence, was of age of 14 (fourteen) to 18 (eighteen).
Juveniles, as perpetrators of criminal offences, participate in the total of state criminality with 9-10%, the fact that imposes the question if the existing legal framework is sufficient as such. Undertaking of the concrete steps in direction of achieving higher standards in work with minor perpetrators of the criminal offences is vivid in works of courts, prosecution offices as well as other complementary mechanisms.
A required attention has been paid to the category of the juveniles in the course of implementation of the special proceedings. This had been also regulated upon the law of now the inexistent state of former Yugoslavia. The legal provisions referring to the work with the juveniles has been foreseen by the Law on Criminal Procedure of SFRY (LCP of SFRY)6, which has disempowered LCP in force, which according to the official newspapers of the SFRY was applied under laws no. 50/67, 54/70 and 6/73. Chapter 27 foresees legal proceedings which refer to the criminal proceedings which is applied to the juvenile perpetrators of criminal offences7 as well as the adequate implementation of the other legal proceedings.
After 10th of June 1999, the end of the war, Kosova had no institutions, and aiming the functioning of the general social order, a start to the initiation of temporary selfgovernance institutions was inevitable. The temporary Administration in Kosova commenced its installment in realm of functioning of the entire governance, commencing from legislative and executive, as well as administration of the judiciary authorities, being implemented by Special Representative of Secretary General of United Nations (SRSG)8. The mentioned Regulation foresees the laws that will be applicable as well as empowerment of the Regulations that shall be rendered by UNMIK.
In amending of Regulation 1/99, once it has been noticed a gap and lack of clarities in implementing of the laws in power, there was a visible need for rendering of Regulation 24/99, in article 1 paragraph 1.1 (b) it stresses decisively that “ the law applicable in Kosova shall be … the law in force in Kosova on 22 March 1989 ” .
There were also other instruments and international acts envisioned to be in power, referring to guaranties of Fundamental Human Rights and Freedoms, with special emphasis to protection of personality and integrity of juveniles, amongst which International Convention for Children’s Rights of December 20 19899.
Commencement of work of courts and prosecution offices in territory of Kosova, started with a special Prosecution of for establishment of ad hoc Courts and ad hoc Prosecution offices10. Regulations rendered by Special representative of the United Nations are valid in entire territory of Kosova and regulate specific fields. By the regulations rendered, despite the fact that at the times specific matters were regulated, upon appearance of general evolvements, the pace for new and more appropriate legislation was kept, considering the existing circumstances.
The criminal procedure for juveniles in Kosova was not regulated by Juvenile Criminal Law, but it was rather regulated by LCP, which has created a legal vacuum upon rendering of Criminal Procedure Code of Kosova (CPCK)11 and Criminal Code of Kosova (CCK)12, therefore, by suggestion of domestic and international experts, the procedure for rendering of the Juvenile Criminal Law of Kosova has been accelerated, in order to regulate proceedings with juvenile perpetrators of criminal offences. With rendering and implementation of the JJC, the JCLK was put out of force and became non applicable.
Rendering of the JJC notes an important era in the work of the jurisprudence authorities, such as courts and prosecutions, being supplied with a more advanced code. Of course, the part of work of JJC as well as of the bearers of functions in jurisprudence, remain also the general legal provisions of CPCK, other international instruments and acts that are to be applied in the course of the work.
JJC, being in force as of July 8, 2010, consists of six separate parts, divided into 22 (twenty two) chapters.
b. Part One
Guiding Principles and Introductory Provisions
- Chapter one - foresees the guiding principles and introductory provisions, with descriptive parts and legal definitions of terms child, minor, young adult, juvenile, as a new term, etc.13, the guiding principle as well as the scope of application.
c. Part Two
Applicable Measures and Punishments
- Chapter Two - where applicable measures and punishments against the juveniles are anticipated, with precise explanation in connection to the procedure that should be followed in the criminal proceedings against juveniles14,
- Chapter Three - mediation, as a part of extra judicial procedure, which shall be conducted by a third person, who is appointed by the institutions and specialized for undertaking of the required action15,
- Chapter Four - the diversity measures are foreseen; considering the conditions and kinds of the diversity measures, as new and important institutions in connection to efficiency in the preparatory procedure for the juveniles16,
- Chapter Five - educational measures, their purpose, conditions, types and the manners of their impositions17,
- Chapter Six - fine and order for community work for general benefit18,
- Chapter Seven -imprisonment of juveniles, purpose of imposition, duration etc., foreseeing also the appropriate procedure19,
- Chapter Eights -measures of mandatory treatment and the accessory punishments20
c. Part Three
- Chapter Nine - conducting of court proceedings for juvenile perpetrators of criminal offences as well as the participation of the respective institutions. The respective institutions are; prosecution with its organizational structure, the court with its organizational structure, probation service, social welfare center, commencement of the preparatory procedure, joinder of the preparatory procedure with the regular one, etc21,
- Chapter Ten - composition of the court panel for juveniles according to legal provisions, as well as proceeding of actions within the respective competencies22,
- Chapter Eleven- the preparatory procedure, describing the role of the prosecutor at the beginning of the preparatory procedure as well as cooperation with other subjects and appropriate parties to the completion of investigations and decision for filling of the appropriate proposal for further actions23,
- Chapter Twelve - temporary arrest, police custody and detention, potentiating the as efficient work as possible of the prosecutors and judges, as the deadlines for actions are of an urgent nature. The action procedure is a more specific one, and the bearers of responsibilities should respect it in best manners possible24,
- Chapter Thirteen- foresees the main trial and actions of the parties and the subjects, characterizing the role of the individual judge, or as a presiding judge of the juvenile panel.25
1 Juvenile Justice Code no 03/L-193
2 Juvenile Criminal Law of Kosova, UNMIK Regulation no 2004/8 of April 20 2004
3 UNMIK Regulation no 1/99 of June 25 1999, On Authorizations of Interim Administration in Kosova
4 UNMIK Regulation no 24/99,of December 12 1999, On Aplicable Law in Kosova
5 Constitution of Republic of Kosova, April 9 2oo8, in force as of June 15 2008
6 Law on Penal Procedure, Official Gazette of SFRY no 4/77, on July 1977,
7 Ibid, Article 452-492
8 UNMIK Regulation 01/99 of June 25 1999, Article 1
9 UNMIK Regulation no 24/99, December 12 /1999, article 1 paragraph 1 3 (h)
10 UNMIK Regulation no 05/99 , septembre 04 1999
11 UNMIK Regulation no 26/2003, July 6th, 2003
12 UNMIK Regulation no 25/2003, July 6th, 2003
13 Article 2 JJC
14 Article 7 JJC
15 Article 14 JJC
16 Article 16-18 JJC
17 Article 19-29 JJC
18 Article 3o-31 JJC
19 Article 32- 38 JJC
20 Article 38- 39 JJC
21 Article 40-50 JJC
22 Article 51-54 JJC
23 Article 55-63 JJC
24 Article 64-68 JJC
25 Article 69-76 JJC
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