Transfer of Juveniles
To end our discussion on custodial rules, the transfer mechanism will be explained. As mentioned in the beginning of this contribution, the age of criminal responsibility was raised from 16 to 18 with the Youth Protection Act (YPA) of 1965. Since 1992 the age of civil majority in Belgium has also been set on 18 years. From that age on youngsters are considered as adults. There are no special provisions for young adults within the Belgian criminal justice system. For example, there is no possibility to keep young adults aged between 18 and 21 in the juvenile justice system, and protective youth measures cannot be applied by the criminal justice system. However, with the recent sixth state reform (2014-2015), some exceptions blurring the boundaries between minority and majority were included in the law (e.g. if the offence was committed before the 18th birthday, youth measures can be prolonged until the age of 23) (D’Hondt 2007).
In general, juveniles younger than 18 are presumed to lack penal responsibility and are dealt with separately from adults. Youth offenders are prosecuted within the juvenile justice system. However, two exceptions to this rule exist. The first exception is when a juvenile aged 16 years or older commits a violation of traffic regulations or related violations. In this case the youngster is automatically prosecuted before the police court (this is the lowest level of penal jurisdiction). However, the police magistrate may still refer the youngster to the juvenile judge when a juvenile measure is assumed to be more adequate. The legislator installed this collective automatic waiver for practical reasons, namely to prevent an overstocking of the juvenile justice system with traffic violations which might impede its core activity of protection and re-education (Van Dijk et al. 2006).
The second exception is transfer to adult court (waiver) for young offenders aged 16 or older. This exceptional mechanism was created for young offenders “steeped in antisocial behaviour” (Lox 1966). In other words, transfer was created for the so-called hardcore young offenders or serious offenders. As the transfer mechanism was intended to be exceptional, the judgement to transfer had to be extensively motivated by the Youth Court. Although the criteria for transfer were not specified, the personality of the young offender was decisive in the decision whether or not to transfer the case. In order to obtain relevant information on the personality and the social context of the young offender, two inquiries were (and still are) required; a medical-psychological examination, carried out by a psychiatrist, a psychologist or a multidisciplinary team of experts, and a social inquiry, carried out by social workers.
In 2006, the transfer regulations were modified. Surprisingly, although politicians came under heavy pressure and a retributive discourse prevailed, the lower age limit (16 years) for transfer was not altered with the reform of 2006. Before 2006, neither the seriousness of the offence nor previous contacts with the juvenile justice system were legal prerequisites for transfer. The Youth Court could take these elements into account, however, if they provided information on the personality of the young offender (Nuytiens et al. 2005). This changed in 2006, with the introduction of two new non-cumulative criteria to decide to transfer. The first one states that the offence(s) of which the young offender is charged has to be a severe one: aggravated violent theft, sexual assault (with threats or violence) and battery resulting in death or severe physical injuries, rape, robbery with murder, torture or homicide/murder. The second criterion stipulates that when the offence is not a serious one, at least one youth protection measure had to be imposed on the youngster.
Before 2006 transferred juveniles were sent to trial in the Magistrates Court (Correctionele Rechtbank) or in the Crown Court (Hof van Assisen), depending on the gravity of the offence(s). With the 2006 YPA a new jurisdiction was put in place: the Extended Youth Court. In each youth court a special chamber was created that takes over the role of the Magistrates Court after the juvenile transfer. This special chamber consists of three judges: one judge from the Magistrates Court and two judges with specific training in juvenile justice matters. Only the most severe offences are still tried in the Crown Court. When a transferred juvenile appears before this court, two of the three judges need to have had this special training.
Since transferred offenders are equated with adults, both the Extended Youth Court and the Crown Court can impose punishments from the criminal justice system, including imprisonment. The reform of 2006 abolished the life sentence for transferred offenders, establishing the maximum penalty at 30 years of imprisonment (Christiaens and Nuytiens 2009). Mandatory sentencing in the Crown Court for grave offences, as in England and Wales, was proposed, but was not retained. Before 2006, although international conventions prescribe the separation of children and adults, transferred juveniles who were remanded in custody after the transfer decision ended up in an adult prison (Nuytiens et al. 2006). If the juvenile was eventually sentenced to prison by the Magistrates Court or the Crown Court, this too was served in an adult facility and juveniles were not separated from the adult prisoners (Nuytiens et al. 2006). Since 2006 it is no longer possible to detain juveniles in adult prisons. The remand custody as well as the prison sentence are executed in a specialised juvenile detention centre. Both in the Flemish and the French community, 10-20 places are foreseen for these transferred juveniles (in Flanders in a separate “detention” centre that recently—due to the state reform—became a community institution; in the French community in a separate wing of a community institution). However, youngsters who seriously disrupt or disturb life in the juvenile detention centre or endanger the integrity of other youngsters and/or staff members can still end up in adult prisons. Also, when there is no vacancy in the detention centre a youngster can be transported to an adult prison. Above this, girls still end up in adult prisons as the government omitted to create such a centre for transferred girls (Nuytiens et al. 2015).
It appears that transfer of youngsters in Belgium has been and still is a moderate practice, but that the application of transfer shows remarkable geographical diversity (Gilbert et al. 2012). Besides, recent research illustrates that the judicial pathway following transfer does not end there for the majority of the transferred offenders. A sample of 210 transferred offenders was followed into adulthood (current age between 30 and 40). It appears that more than half of them were convicted recently, and almost a third is currently residing in prison or has left prison recently (Nuytiens et al. 2015).
Finally, keeping the transfer mechanism in place is a principal and political matter. It seems as though children’s rights are weighed against the perceived necessity of a “harsher” approach to severe juvenile delinquency. At present it appears that juvenile transfer will remain a part of the Belgian legislation (Put and Hespel 2014). Neither the Flemish- nor the French-speaking community authorities, who recently became competent in this matter, are planning to abolish it.
-  In fact, the Youth Court transfers the case to the public prosecutor, who—theoretically—can stilldismiss the case or propose mediation. In practice, this only happens sporadically, because as arule, it is the public prosecutor who requests the transfer.