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Detention on Remand

A placement in a community institution during the pretrial phase is normally ordered for 3 months, a period that can be prolonged by the juvenile justice judge once for 3 months and subsequently on a monthly basis. Even though in principle community institutions are competent for the organisation of juvenile delinquents’ detention, a federal centre opened its doors in the beginning of 2002. This was due to the fact that Belgium, after being condemned by the European Court of Human Rights in the Bouamar v. Belgium case (1988) for having unlawfully detained a juvenile in an adult prison, decided to abolish the possibility for juvenile judges to detain youngsters on remand in adult prisons. However, this abolition in the beginning of 2002 immediately led to some releases with huge media attention of young delinquents due to a claimed lack of capacity in the community institutions. Only 2 months after the abolition of adult detention during the pretrial phase, the federal “Youth Detention Act” of 2002 was passed and an old military casern was speedily turned into a federal centre to detain delinquent boys in order to “protect public safety” (Christiaens and Dumortier 2002). In the years that followed other federal youth detention centres were created.

According to the “Youth Detention Act” of 2002, these institutions can only play a role during the pretrial phase by offering detention on remand for boys over 14 years old, who are alleged to have committed a crime of a certain seriousness (punishable with 5 years’ imprisonment or more if committed by an adult) and for whom there is no place available in a community institution. They are initially placed by the juvenile justice judge for a period of 5 days, after which the judge has to reconsider whether to prolong the pretrial detention for 1 month.

After that month the juvenile justice judge again has to reconsider whether a prolongation for 1 month is necessary. After a maximum of 2 months and 5 days the minor can no longer be held at these centres.

Consequently, from 2002 on, there were two kinds of youth detention institutions: (1) the more welfare-oriented community institutions where pretrial and convicted youngsters are mingled indiscriminately together, since the main aim of these institutions is the welfare of the child, and (2) federal centres that were emblematic of the emerging penal-oriented approach and that functioned solely as a pretrial youth detention centre in order to protect public safety and to be a “backup” for community institutions in case they were full. However due to the recent State Reform of 2014 communities became competent for these federal centres. In Flanders, the federal centre became a Flemish community institution, however still functioning under the realm of the federal more penal-oriented Act of 2002 (and this until and if the Flemish parliament decides otherwise). The parliament of the French community however decided to abolish the Federal Act of 2002 and to turn their federal detention centre into a traditional welfare-oriented community institution. Consequently in the French community, as contrasted with the Flemish community, all community institutions are welfare-oriented institutions (at least according to the law in books ...).

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