Juvenile offender: prosecution as of September 30, 2021

Verified 17 November 2021 - Directorate for Legal and Administrative Information (Prime Minister)

The public prosecutor, following his investigation, decides whether or not to prosecute a minor following a infringement brought to his knowledge. The minor is, in principle, tried directly by the juvenile judge with the aim of establishing a educational testing (for contraventions or offenses of low gravity).

Exceptionally, the minor may be referred directly to the juvenile court for offenses punishable by more than 3 years' imprisonment and if he or she is over 13 years of age. Finally, for the crime , an investigating judge shall be obligatory designated to conduct an investigation. This designation is also possible for offenses which require further investigation.

The public prosecutor's office must ensure that the investigators notify the victim of the date of the guilty hearing and summon the persons responsible for the minor (parent, guardian, appropriate adult,...).

As soon as a minor commits an act prohibited by law (we speak ofinfringement), it is either caught on the fait accompli, or the victim or his lawyer files a complaint.

In all cases, the prosecutor is then notified and 2 situations are possible:

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The minor is not prosecuted

The minor shall not be prosecuted for any of the following reasons:

  • There was no offense
  • The evidence against him is insufficient
  • The minor is ultimately not involved in the commission of the offense
  • The presumption of non-discrimination, for a minor under 13 years of age, shall be detained. This presumption may be raised if the public prosecutor adduces evidence that the minor was aware of his or her actions.

In this case, the public prosecutor file the case no follow-up.

However, the public prosecutor may choose to put in place measures to prevent the minor from being prosecuted (reminder of obligations, remedy, mediation,...).

If these measures are effective, the public prosecutor will not pursue the case.

However, if the measures taken fail, the public prosecutor may refer the minor to a judge or court.

The minor may be prosecuted

The public prosecutor (the public prosecutor's office) chooses the follow-up to be given to the case according to the minor's personality, living conditions and education.

Thus, if the public prosecutor considers that the minor may be prosecuted, he may refer the case (i.e. transmit the file) either to the juvenile judge (procedure in principle), to the juvenile court or to the investigating judge.

The investigation then leads to:

  • Either on the delivery to the minor of a summons
  • Either on a dump. At the end of police custody, the minor is transferred to the public prosecutor's office, in the presence of his lawyer. The public prosecutor shall inform the minor of the alleged offense(s) and shall issue a hearing date for the judge to rule on his guilt.
    The unferment allows the immediate pronunciation of a educational measure and/or a measure restricting the freedom of the minor awaiting trial.

In all cases, a collection of socio-educational information is carried out for the day of the judgment. It provides information on the juvenile's situation to the judge.

At any time (whether the case is closed or not), the public prosecutor assesses the need to refer the case to the child protection services (department services).

The public prosecutor may therefore opt for one of the following:

  • Forward the file to the child protection authorities for an administrative assessment of the situation of the minor and his/her family
  • Solicit the Juvenile Judge of an application in educational assistance if he decides to prosecute the minor

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File sent to the Children's Judge for a guilty review hearing and an educational probation

At the end of the investigation, the public prosecutor decides to prosecute the minor. He shall forward the file:

  • Or, in the majority of cases, to the Juvenile Judge (in the Council Chamber, i.e. directly in his office)
  • Either the Children's Court, that is, the Children's Judge and his or her assessors. The court may have jurisdiction for minors over 13 years of age when the sentence is more than 3 years and where justified by the minor's personality or the gravity of the facts. These conditions are cumulative.

In all cases, the objective is to put in place a educational test procedure (called PMAEE) before the judgment on the imposition of the penalty.

The procedure therefore takes place in 2 steps :

  • First, a hearing determines whether or not the minor is guilty of the offense.
    This first hearing must take place at the earliest 10 days after the dismissal of the public prosecutor and at the latest 3 months after, except in cases of pretrial detention.
    This hearing is also intended to determine any compensation payable to the victims of the crime.
    Following this hearing, a period of educational testing Let's start. It will last between 6 and 9 months. During this period, several measures can be put in place. These include: an obligation to remain in a specific geographical area and an obligation to justify it, an obligation to stay at home, provisional judicial educational measures, medical or psychological expertise.
  • Then, a hearing is held on the delivery of the penalty that the minor will have to execute. This 2nd hearing can take place in two ways:
    • Either in the Council Chamber for the delivery of educational measures or work of general interest, internship or confiscation of property used in the commission of the offense (the juvenile judge in the Council Chamber not being able to pronounce a prison sentence)
    • Either by the Children's Court, which can pronounce all measures and penalties

If the minor has given satisfaction during the educational test, the juvenile judge or the court may order a waiver of educational measures, a waiver of sentence or a declaration of educational achievement.

FYI  

by exception, in the case of minor offenses, the juvenile judge or the juvenile court may decide to try the minor in a single hearing. In order to do so, the juvenile judge or the juvenile court must be familiar with the minor's personality and consider that an educational probation is not necessary. In this case, at the hearing on the guilt of the minor, the juvenile judge or the juvenile court will decide on the punishment.

File sent to the Children's Court for a single hearing

At the end of the investigation, the public prosecutor may, in exceptional cases, decide to prosecute the minor and refer the case to the juvenile court for trial directly the minor (we're talking aboutsingle audience).

However, this type of procedure is subject to the conditions cumulative following:

  • The penalty shall beat least 5 years for minors aged from 13 to 16 years (or the penalty isat least 5 years for minors, aged from 16 to 18 years)
  • The minor has already been subjected to an educational measure, a conviction or a sentence of less than one or has been prosecuted for refusing to submit to screening and fingerprinting

The hearing before the court shall take place no earlier than 10 days after the public prosecutor has referred the matter to the court.

If the juvenile has been placed in prison by the Judge of Liberties and Detention, at the request of the Public Prosecutor, the hearing must take place at the latest 1 month after the matter has been referred to the court.

If the minor has been brought before the juvenile judge for educational or judicial review, the hearing shall take place at the latest 3 months after the matter has been referred to the court.

The children's court will decide at the same time

  • on the guilt or otherwise of the minor
  • and on the penalty that he will have to carry out (educational measure, judicial warning, penalty if the minor is already known).

Exceptionally, the court may decide on an educational probation period of 6 to 9 months.

Transmission of the file to the investigating judge

At the end of the investigation, when the public prosecutor decides to prosecute the minor, in criminal matters, he duty forward the file to a examining magistrate. It may also refer to an investigative judge offenses that require special investigations (additional investigation).

A minor over 16 years prosecuted for the commission of a crime is then tried by the juvenile court.

In the case of a minor under 16 suspected of having committed an offense or a crime, the judgment will be made 

  • by the criminal child court (crime), or
  • or by the juvenile court or the juvenile court (misdemeanor).

In all cases, the investigative judge will have to resort to an educational measure of judicial investigation (information on the situation of the minor and his entourage). .

FYI  

in the case of the first four classes of contraventions, if the public prosecutor decides to prosecute the minor, he forwards the file to the police court.

Criminal records are only entered after the penalty has been imposed.

  • Decisions on interim measures at the time of referral
  • Judgment on guilt
  • Decisions rendered during the educational probation period
  • Judgment on the penalty
  • Post-sentencing decisions (made following)

The majority of cases are appealed to the Court special chamber of minors.

However, decisions made under criminal investigation are appealed to the investigating chamber.

2 possible scenarios:

  • Following the guilty hearing, the minor appeals on this principle. The Court of Appeal is in a position to rule (i.e. to rule) before the hearing of the award. It confirms or invalidates the guilt of the minor, the probation normally continues until the sentence is handed down. A new call is then possible.
  • Following the guilty hearing, the minor is found guilty. This one's appealing. The Court of Appeal is not in a position to rule before the sentencing hearing, the period of educational probation continues and the court makes its decision on the sanction. When the court considers the minor's appeal, it will rule on guilt and punishment.