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Welfare-Oriented Community Institutions: The Basic Custodial Approach in Belgium
In principle, only community institutions are allowed to organise the detention of minors in Belgium. These community institutions can be characterised as open or closed public institutions. The former, in general, have less rigid discipline and provide more possibilities to exit the institution (for reasons of schooling, visiting parents, etc.). The latter provide a more structured daily regime with less possibility to leave the institution and more attention is paid towards the protection of the public.
Pursuant to the new Youth Protection Act of 2006, certain legal criteria should be fulfilled in order to place a minor in a community institution (whether this happens during the pretrial phase or after sentencing). Minors who have reached the age of 12 and who have committed (or are alleged to have committed) an offence of a certain seriousness (punishable with 3 years of imprisonment or more if the offence was committed by an adult) can be send to “open” community institutions. For “closed” institutions the criteria are even more stringent. The minor has to be at least 14 years old (in exceptional cases the age of 12 is accepted) and should have committed (or is alleged to have committed) an offence punishable with at least 5 years’ imprisonment if the offence was committed by an adult. Certain “violent offences” can also lead to a placement in open or closed community institutions. In cases of recidivism the legal criteria concerning the seriousness of the offence become less stringent for both types of institutions (Christiaens and Dumortier 2006). Minors who have not complied with a protection measure imposed by the juvenile justice judge can also be sent, under certain conditions, to an open or closed community institution. In this case a clear maximum duration of 6 months is prescribed, with no possibility of extension.
The community institutions play a double role in Belgian juvenile justice practice. On the one hand they fulfil a mission of observing and guarding the minor during the pretrial phase. This leads to an “observation report” which should guide the juvenile justice judge in imposing the most appropriate measure after conviction. On the other hand the community institutions also have a mission to re-educate minors who have been sent there by the juvenile justice judge after their conviction. However, there is no specialisation at the institutional level in this perspective since all minors are mingled.
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