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THE YOUTH PROTECTION ACT OF 1965 AND THE AGE OF MAJORITY
In 1965 a reform of the Child Protection Act was passed by the Belgian Parliament, by an almost unanimous vote. The new Youth Protection Act confirmed the welfare and protection model. The 1965 reform resulted in a more elaborated welfare model for the juvenile justice system.
First, the 1965 reform increased the age of criminal responsibility from 16 to 18 years. Since then, Belgium has had one of the highest age limits of doli inca- pax in Europe and the world. However, this rise in age limit was “compensated” by the introduction of a legal waiver mechanism. The possibility of transfer of cases to the adult penal courts concerned young offenders between the ages of 16 and 18. This transfer was not based upon the offence, but rather on the opinion of the Juvenile Court that welfare measures were no longer adequate for the minor involved. Thirdly, the Youth Protection Act of 1965 held the possibility of putting minors in pretrial detention in an adult prison in exceptional cases (Article 53). This possibility was seen as a sort of “in case” escape from overcrowded youth institutions. However, the use of this pretrial “adult” detention pointed at a problematic “short sharp shock” practice that, eventually, would lead to the decision of the European Court of Human Rights in Bouamar v. Belgium (1988) (Dumortier et al. 2012). This decision was at the origin of the abolition of Article 53 and the subsequent creation of a provisional federal institution (prison) for pretrial detention of minors in Belgium (see below, residential care). At the same time, in Bouamar v. Belgium the European Court of Human Rights condemned the lack of legal rights for minors during the pretrial phase, which led to the Act of 1994 that strengthens the legal position of minors (e.g. the right to legal assistance and the right to be heard before any “provisional measure” is taken during the pretrial phase).
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