Home Law International Handbook of Juvenile Justice
COURTS AND JUVENILES
When confronted with an offence committed by a minor, the public prosecutor in the Youth Court is always a prosecutor that is specialised in youth cases. This public prosecutor can decide whether or not to dismiss the case. Besides these traditional competences of the Belgian public prosecutor, the new federal Youth Protection Act of 2006 introduces three possibilities for action on juvenile delinquency. From now on, the public prosecutor can accompany the dismissal of the case (1) with “a warning” to the youngster and/or his or her parents. Furthermore the public prosecutor can also launch (2) a “mediation offer” or (3) a “parental internship”. These two last measures call for some further specifications.
The introduction of mediation in the old welfare system is one of the major innovations of the new Act of 2006. Mediation has been made possible both on the level of the public prosecutor and on the level of the juvenile justice judge. Following the new Act, the participants must be explicit in accepting mediation. A right to legal assistance is foreseen and the law guarantees the confidentiality of the mediation process. Nevertheless one might wonder whether these legal provisions are and can be guaranteed in practice. The offer of mediation, for example, is launched by the public prosecutor, who has the power to prosecute whenever a youngster does not voluntarily agree to participate in a mediation process, or by the juvenile justice judge who can always react more “thoroughly” when there is no co-operation (Eliaerts and Dumortier 2002).
It should also be mentioned that mediation is not introduced as a real alternative or “diversionary” approach for the traditional welfare model. Even when mediation is successful the public prosecutor can still prosecute the youngster and, on the level of the juvenile justice judge, mediation (even in successful cases) can be cumulated with other measures (see below). In this way, mediation seems to become one out of many possibilities in the panoply of welfare measures instead of “real” diversion. Moreover the recent General Comment No. 10 on children’s rights in juvenile justice of the UN Committee for the Rights of the Child (2007) clearly states that “the completion of the diversion by the child should result in a definite and final closure of the case” (§27).
The introduction of the parental internship is another important innovation of the new Youth Protection Act of 2006. As is the case with mediation, they can be imposed on both the level of the public prosecutor and the level of the juvenile judge. According to the legislature, this new reaction should be seen as a “sanction” aimed at failing parents who “clearly show a lack of interest” for the delinquent behaviour of their offspring. This parental internship consists of 30 h and in general includes individual as well as group counselling. Parents who refuse to follow these parental classes can be punished with a fine or an imprisonment (maximum of 7 days). The new possibility to punish parents for delinquent behaviour of their children, together with the use of vague legal descriptions, was heavily criticised by academics and fieldworkers (Delens-Ravier 2008). The Belgian Constitutional Court saved the Belgian legislature, however, by claiming that the new “sanction” vis-a-vis parents was in fact a “welfare measure” aimed at sustaining these failing parents (Constitutional Court 2008, Arret n° 49/2008, B.8.2). Since 2010, neither the Belgian Government nor the governments of the communities foresee any fundings for these kinds of “parental internships” (Put
2015). As a consequence, for the moment, this new measure only exists on paper and not in practice.
Finally, it should be noted that the new Act does not foresee the possibility of imposing community service or intermediate treatment on the level of the public prosecutor. This leads to the supposition that these actions are no longer tolerated under the new Act.
Level of the Juvenile Justice Judge: As mentioned above, since the Children’s Act of 1912, the juvenile justice judge is a single-seated and “specialised” judge who follows the youngster throughout the whole judicial process: pretrial phase, trial and execution of the measure (post-trial phase). The new Youth Protection Act of 2006 did not change this old idea of the welfare-oriented juvenile justice judge. Nevertheless the new Act did introduce a new list of criteria to render judicial decisions (whether they are taken during pretrial, trial or execution of measure) more objective. This list refers to criteria, among others, like “the personality of the minor”, but also “the seriousness of the offence” and “public safety”. At the same time the criteria for the decision to place a minor in public “community institutions” became more stringent. Age limits, as well as criteria concerning the seriousness of the offence, were introduced. These new criteria are applicable for all placements in “community institutions” at every stage of the judicial procedure (pretrial, trial, execution of measure), but will be handled in section “Custodial rules for juveniles” of this article.
During the pretrial phase, the juvenile justice judge can take “provisional measures” in order “to investigate the youngster’s personality and home situation” and “to guard” him. Within that scope, the juvenile judge can either place the youngster “under supervision” of the social service of the Youth Court (with or without the imposition of additional conditions) or impose a measure of “provisional placement” (with a competent person, in a private institution or, under certain conditions, in a public “community institution”).
The new Act states that these provisional measures should only be taken for the shortest time possible and that they should never be taken with the aim to sanction in an immediate way the youngster involved. Nevertheless we notice that the “provisional measures” can also consist of fulfilling 30 h of community service, interdiction on leaving the parental house and placement in a “closed” public “community institution” (see also below, on residential care). Hence the “provisional measures” in practice leave plenty of possibilities to sanction a minor immediately during the pretrial phase. At the same time the Act does not foresee real stringent criteria concerning the duration of the measures during the pretrial phase. Moreover, pursuant to the new Act, these provisional measures can also be cumulated.
Besides these traditional “provisional measures”, the new Act also allows the juvenile justice judge to launch a “mediation offer” during the pretrial phase, which again may be cumulated with other measures.
As a consequence, one can easily claim that the new Act offers very broad possibilities to intervene during the pretrial phase even though research has identified the growing importance of the pretrial phase as the “decisive phase” and the tensions this brings with the respect of human rights and children’s rights, like the right to a fair trial (before any measure is taken instead of afterwards) (Dumortier 2006; Van Dijk et al. 2006). As a counterforce, the new Act of 2006 stated that these provisional measures could only be imposed when there are “sufficient serious indices of guilt”. However, and quite remarkably, the Belgian Constitutional Court thought this to be unconstitutional, because the judge that has decided whether there are indices of guilt during the pretrial phase cannot be allowed to sit during the trial phase (i.e. the right to an independent judge). Instead of introducing the obligation of a different juvenile justice judge during trial, the Constitutional Court has opted to abolish a new legal guarantee for youngsters during the pretrial phase (Constitutional Court 2008, Arret no. 49/2008).
Finally it should be mentioned that a Federal Act of 2002 allows the juvenile justice judge to place a minor in pretrial detention in a Federal Centre, which further enlarges the juvenile judge’s possibilities to intervene during the pretrial phase (see below, Sect. “Custodial rules for juveniles”).
Once at trial the juvenile justice judge has at his or her disposal a panoply of measures. In contrast with the old Act of 1965, the new Act of 2006 foresees, in sentencing guidelines, following the principle of subsidiarity. First of all, the juvenile justice judge has to consider a “mediation or group conferencing offer”, then a “written project proposed by the youngster”, then the possibility of imposing a measure of “supervision” (with or without further conditions) and only as a last resort the possibility of a custodial sentence (by preference in an “open” institution, otherwise in a “closed” institution). These measures, which can be imposed in a cumulative way, call for some further explanations.
Firstly, we notice again the importance in the new Act for restorative justice initiatives. As contrasted with the level of the public prosecutor, besides victim- offender mediation, the juvenile justice judge can also impose a group conference (Herstelgericht Groepsoverleg). This group conference is characterised by the fact that both victim and offender are allowed to invite significant others and that a police officer and social worker can be present.
Secondly, the “written project” proposed by the minor to the juvenile justice judge can be aimed at restoring the damage caused by the offence, apologising, participating in a mediation, following intermediate treatment for a maximum
45 h, etc. This “written project” is an innovation surrounded with more questions than answers. It is not quite clear what exactly the legislature intends from this measure, nor how this “written project” should emerge in practice. We assume that the lawyer of the minor will have to play an important role in informing and encouraging here. Otherwise, if the social services of the Youth Court or the juvenile justice judge should even whisper what the minor should propose, this written project can easily become an instrument to “self-inflict” what the Youth Court in fact wants to impose (Christiaens and Dumortier 2006).
Thirdly, a wide range of ambulatory measures are foreseen to keep the minor in freedom instead of placing him or her in custody: admonition, supervision by the social services of the Youth Court (with or without further conditions), intensive educational supervision, community service for a maximum of 150 h, ambulatory treatment by psychological services, etc. It is important here to notice that only the first three measures can be imposed on children under the age of 12 years, excluding as a consequence the possibility of imposing community service on young children.
Fourthly, the new Act introduces a diversification of the possibilities to place a minor. Besides the old possibilities to place a youngster with a (1) “competent private person” (foster family), (2) in a private institution or (3) in an “open” or “closed” community institution, the new Act of 2006 creates the additional possibilities to (4) place a minor with a “(legal) corporate body” in order to fulfil a “positive achievement”, or (5) to place the minor in a hospital, in a service that organises withdrawal courses (alcohol, drugs) or in an open or closed juvenile psychiatric institution.
As mentioned above, the Youth Protection Act of 2006 introduced new legal criteria for the placement of minors in community institutions (see Sect. “Custodial rules for juveniles”). Moreover, pursuant to the new Act, the juvenile justice judge has to specify in his or her judgment the duration of the placement, a duration that can only be prolonged in the exceptional case of “continuously bad behaviour” of the youngster or “dangerous behaviour towards himself or others”. The new Act also introduces the possibility for juvenile justice judges to adjourn the placement if the minor is prepared to fulfil a community service order of up to 150 h.
To complete this overview of the juvenile justice judge’s options at trial, one should not forget that the juvenile justice judge can also transfer juvenile delinquents from the age of 16 to adult courts (see further on transfer) and/or impose a parental internship (see above).
During the execution of the measure, the juvenile justice judge can revise the measure at any time, always taking into account, of course, the legal criteria imposed by the new Youth Protection Act (especially concerning placements in community institutions). Finally, all measures imposed by the juvenile justice judge end in principle at the age of majority (18 years). Nevertheless, the juvenile justice judge can extend provisional measures until the age of 20 years. Measures taken at trial can also be prolonged until 20 years when the minor requests this himself or herself or in case of “continuously bad or dangerous behaviour” by the youngster. In cases where a minor committed an offence after the age of 16 or in cases of very serious offences committed by children older than 12 years, the juvenile justice judge can even prolong measures until the age of 23 years.
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