The Belgian government implemented a specific justice system for people under 18 years old and in conflict with the law. In 1912, the minor (under 16 years old) was completely taken out of the criminal system with the presumption of non-discernment (i.e. criminal irresponsibility). It was also the first time that judges for children were appointed. In 1965, a law passed regarding youth protection, extending the presumption of criminal irresponsibility to everyone under 18 years old with exceptions for minors between 16 and 18 years old.
The main law that regulates this justice system is the law regarding the protection of the youth
of April 8, 1965 as well as the law of June 13, 2006 that modifies it. The penal majority is set at 18 years old (based on the interpretation of the article 36/4 of the 1965 law by the Court de Cassation) and everybody under that age are considered to be exempt of criminal judgement (i.e. discernment) regarding acts they commit. As such, they are considered criminally irresponsible (Kuty, 2010). That doesn’t mean that they won’t face any consequences for their actions. It means that they cannot face criminal sanctions but the judge can still choose among custodial, preventional or educational measures (DEI-Belgique, 2010). Because the minor is criminally irresponsible, they cannot commit offences, as such their acts are labeled as ‘acts qualified as offences’, meaning that they would have been offences if they had been committed by adults (Moreau 2004).
The notion of judgement is not clearly defined in the law but it is referred to as «the knowledge of the illegality of the act» (Prins, 1899), «the full understanding of the criminality of the act»
(Cour de Cassation, 1913) or even «the idea of lucidity, of awareness that one can have about an act or a situation»
(Mabaka, 2012). This presumption of irresponsibility is considered total for minors under 16 years old (based on the 15/05/1912 law regarding youth protection) and considered rebuttable for minors between 16 and 18 years old (Art. 36/4 of the 8/04/1965 law). One of the consequences of this presumption is that there is no age below which a child cannot face charges for ‘acts qualified as offences’ and appear in front of a Youth Court.
Another consequence is that a minor cannot use the legal excuses at the disposal of adults to diminish the sentence (alleviating excuses) or to avoid it completely (exonerating excuses). As such, an offence committed by an adult resulting in no sentence at all due to one of the excuses mentioned above, would automatically result in an educational measure for a child in a similar situation (Moreau, 2004).
There are exceptions, as well, to this presumption of criminal irresponsibility, for minors between 16 and 18 years old. They can be divided into two categories: 1) the general exceptions provided by article 36bis of the 8/04/1965 law and 2) the extraordinary exceptions which include special measures for minors with psychological disabilities (article 43 of the 1965 law) as well as the concept of divestiture
as provided by the article 57bis of the 1965 law. Article 57bis provides that when a minor appears in front of a Youth Court because he committed an act ‘qualified as an offence’, the judge can, under certain conditions, decide to divest himself from the case which is then referred to a correctional chamber, that is still part of the Youth Court but that will judge the minor as an adult (Delseaux, 2016).
The conditions required for a divestiture to happen are stated in article 57bis as well and are as follows: 1) the minor needs to be at least 16 years old at the time of the events, 2) custodial, preventional and educational measures are found inadequate by the judge (this requires a psychological and social evaluation that is not binding for the judge) and 3) the minor is either a recidivist or he has committed a serious offence (e.g. rape, murder, theft with violence, etc.).
Custodial measures refer, for instance, to the placement of minors in Public Institutions for Youth Protection
. The Youth Court can decide to place a delinquent minor (over the age of 12) under surveillance if they believe that the minor could be a danger for themselves or for others. There are two types of placements: the open system and the closed system. An open system means that the room in which the minor stays is not closed at night. And the closed system is the opposite. Both types of placement provide educational programmes but closed systems are exclusively designed for minors who have commited serious offences such as homicides, rapes and assaults (AAJ).