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DIVERSION AND ALTERNATIVE SANCTIONS FOR JUVENILES
While police-level diversion is not foreseen in the YPA, in practice there are some diversion projects at this level. For example, several Flemish communities have launched a first-offenders-project targeting young offenders who commit petty offences (e.g. shoplifting) and who are arrested for the first time (Put 2015). Also, the practice of police mediation is quite common. In this case the police organises a mediation procedure before sending the case to the public prosecutor. Research has shown that large differences exist among these mediation practices (Aertsen and Lemonne 2003).
In 1965, the Belgian legislator also omitted to include regulations on diversionary practices for young offenders at the level of the public prosecutor. The rise of “alternative sanctions” in the 1980s in Belgium was clearly a bottom-up movement, setting up all kinds of diversionary and alternative sanction projects in the field. These pilot projects (1980s) were generalised during the 1990s, but with clear differences between the northern, Flemish-speaking community and the southern, French-speaking community. Most notable are the differences in the development of restorative justice mediation practices. Research has made clear that in the 1990s diversionary or informal ways of dealing with young offenders were still very “marginal”. Only 4.2 % of the prosecutors’ decisions concerning young offenders resulted explicitly in an alternative sanction (Vanneste 2003). For example, youngsters who successfully completed community service or a victim-offender mediation would not be prosecuted before the youth court. In about 70 % of all cases, the public prosecutor’s decision resulted in a dismissal of the case. However, these dismissals may represent the front window for a more informal practice of dealing with young offenders.
The 2006 YPA formalised practices of diversion and (in)formal dealing with young delinquents at the public prosecutor’s level. The cautioning of young offenders and their parents was formally introduced as a “low-level” intervention. Indifferent parents of young offenders could also be required to follow a “parental internship” (this was however already abolished in practice in 2010). Within the reformed Belgian juvenile justice system, priority must be given to the principle of restoration. Hence, restorative mediation on the public prosecutor’s level was also formalised in the 2006 YPA. A successful mediation procedure however does not guarantee a dismissal of the case (Put 2015). This contradicts the viewpoint of the Children’s Rights Committee that a successful diversionary procedure must result in dismissal (General Comment 10 Children’s Rights Committee, 2007).
The 1965 YPA provided the possibility of alternative ways of dealing with young offenders by the youth court. It was not until the 1980s that the alternative sanctioning practice was set up through different local pilot projects. In general, the discourse held that these sanctions had to be an alternative to the detention or placement of young offenders in public institutions. However, studies illustrated that these alternative ways of dealing with young offenders functioned more as an alternative to the dismissal of the case, resulting in net widening, rather than in a deinstitutionalisation or a reduction of incarceration of youngsters (Vanderhaegen & Eliaerts 2002).
Since 2006, alternative ways of dealing with young offenders by the youth court include community service, learning projects, mediation and family group conferencing (FGC). In the 2006 YPA is referred to these settlements as “restorative and constructive measures”. Youngsters are seen as active agents, held responsible for their acts and expected to take action to restore the damage done (Put et al. 2012). This is remarkable as it contradicts the general principle of youth justice systems, where children are perceived as (partially or fully) irresponsible for their acts (Haines and O’Mahony 2006: 119).
The youth court can impose community service on young offenders aged 12 or older. Community service can be imposed autonomously, but also as a condition to keep the youngster in his or her environment. If community service is imposed in the preliminary phase (as part of a supervision order), the maximum is 30 h. Learning projects can also be imposed by the youth court. These projects consist of training programmes focusing on specific topics (e.g. aggression, drugs). The goals, methods used and structure (individual, in group) are very diverse. Learning projects can be imposed on young offenders in several ways. For example, just as is the case for community service, the youth court can impose a project as condition to keep the youngster in his or her environment. Victim-offender mediation and FGC are perceived as “the” restorative justice measures, because— as opposed to community service and learning projects—the victim has a central place. The mediation and FGC practices however have several flaws. For example, success rates of mediation practices are quite low (e.g. stopped prematurely), the involvement of victims remains low and youngsters from ethnic minorities are underrepresented. Furthermore, while the youngster has to participate voluntarily, the concept of voluntariness can be questioned as the youth court is obligated to reckon with the outcome of the mediation procedure. In that sense, the youngster might feel obliged to participate (Cartuyvels et al. 2010).
The application rate of “restorative and constructive measures” is and has always been different depending on the judicial district (Gilbert et al. 2012; Nuytiens and Van Grunderbeeck 2003).
It appears that, today, mediation is the most popular restorative and constructive measures, but it is most often imposed on the level of the public prosecutor. FGC is not imposed that often (60 times imposed in 2014 as opposed to 2955 mediations).
Since the 2006 reform, some new/innovative alternative measures were included in the law. We will discuss the most important ones here: the parental internship, the written project, home confinement (“house arrest”) and intensive educational guidance. As the parental internship was hardly ever imposed, this measure was abolished in practice in 2010. Research shows that the written project is also quite unpopular and that it is only imposed by French-speaking judges (Gilbert et al. 2012). Home confinement for youngsters originated from practice. It was launched in 2003 by the Antwerp police. The youngster must stay at home and is checked upon by the police. The youth court can decide to impose other restrictions. There are a lot of geographical differences for what concerns the application of this measure (Gilbert et al. 2012). To date, the measure of intensive educational guidance is only implemented in Wallonia as “SAMIO”, and focuses on serious offenders. Research shows that this measure is especially used as “last resort” to compensate for the lack of space in the institutions. This contradicts the initial goal of the measure, namely to serve as an alternative for placement.
In 2012, all decisions of the youth court (25 out of 27 judicial districts) concerning young offenders of 2 months were registered and analysed (Gilbert et al. 2012). It appears that measures implicating that the young offender can stay in his or her environment (with or without conditions) are the most popular ones. In Flanders, 1 in 3 measures are conditional decisions that keep the youngster at home. The most frequently mentioned conditions imposed are community service (19 %), learning project (18 %), attending school regularly (15 %), home confinement (12 %) and complying with pedagogical or medical guidelines (10 %). It appears that the distribution of decisions is quite similar in the French community. Also 1 in 3 measures are conditional decisions to keep the youngster at home. The most mentioned conditions are attending school (30 %), community service (15 %), complying with pedagogical or medical guidelines (13 %), not attending a specific place/not meeting a specific person (12 %) and home confinement (4 %). French-speaking juvenile judges impose more placements in a youth offender institution, but this might be explained by the lack of space in Flemish Youth Offender Institutions.
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