Mediation Juvenile Court

Çocuk Adalet Sisteminde
Alternatif Uygulamalar:
Arabuluculuk (Mediasyon) Konferansı
Belçika’da
Çocuk Adalet Sisteminde
Uzlaşma
Restorative Justice (mediation) and Youth Protection at Juvenile Courts
(Belgium)

Ankara Universitesi – 17 Mart, 2007
Ankara - Turkey

Paul WOUTERS - Bener Danışmanlık A.Ş.
Istanbul - Turkey

Restorative Justice:
Mediation in Juvenile Matters
Belgium

This summary presentation only intends to introduce the audience to the broad guidelines of
some aspects of what can be called “youth protection in criminal cases” and / or “out of
court settlements” in criminal cases for misdimeanors conducted by minors and such from a
Belgian perspective.

The brand new Belgian Law dated May 15th, 2006 will be implemented in phases, of which
the “mediation” should be operational as from April 2007.

For the benefit of this summary presentation some free translations have been made, some
generalisations have been introduced and some aspects have been overlooked in order to
stay focussed on the mechanism of the “mediation” rather then on the technical-legal
technical-
issues. Certain legal terms /qualifications are also being generalized (emprisonment /
incarceration – offence / crime ...) in order not to go too much into detail but restrict to a
general overview only.

This presentation therefore is not a legal advice and does not intend to be complete.

For details and further information on specific issues or implementation consult your legal
adviser.

Istanbul - Turkey

Belgium

The Belgian Youth “criminal” Court system is based on two
important pillars:

1. Youth protection (and not punishment)
2. Restorative justice using (“group”) mediation
techniques

We will talk about these issues in this order of sequence
and in very broad terms.

Istanbul - Turkey

Belgium
Youth protection measures
First of all :

Until the age of 12 (twelve) there is no penalty for a child-
child-
delinquent that commits an offence
-They are assumed to live in a problematic situation and
should be protected
-A warning / reproach or follow up by the Social Services
or intensive educational aid will be the measure taken (in
urgency matters or in exceptional situations with problematic
educational environment a temporary placement is possible)
-A parenting training can be offered (by prosecutor) /
decided for (by Court)
Istanbul - Turkey

Belgium
From the age of 12 till the age of 18 certain “regular”
measures can be taken in progressive way (see basics hereafter),
basic objective and goal is to keep the child “at home”

Between the age of 16 till 18, subject to conditions (mainly
18,
when the juvenile delinquent has commited certain serious
offences or appears not to respond to pedagogical approach), and
after a social and medico-psychological report, he can be send to a
medico-
“regular” criminal court - “given out of the hands of Juvenile
Court” (a Chamber that is a special subdivision of Youth Court
with 2 Judges in Juvenile matters and 1 Judge Criminal matters –
for extreme serious offences: regular jury trial possible)

Maximum penalty is 30 years of emprisonment and such only
after the age of 18 years old in a “regular” prison
Istanbul - Turkey

Belgium

Normally, measures end at the age of 20 years old
Measures that stay in force after the age of 18 years
old and until the age of 23 years old are possible:
For certain types of offences, and such from the age of 17
years old on, measures can be taken that run until the age
of 23
Same can apply to delinquents between the age of 12 till
17 years old for certain types of offences, subject to certain
conditions (mainly consistent dangerous behaviour).

Istanbul - Turkey

Belgium

At Court, the judicial decision should be motivated:
personality, age, social environment, school, safety,
seriousness of the alledged facts, danger to him/herself and
to society ... The criteria offer the judge the possibility to
objectivate as much as possible and tailor solutions for a
specific child in a unique situation. Maximum durations have
to be fixed, only to be prolonged because of bad behavior
delinquent.

At Court, Subsidiarity Rule: the less / lower measure is to
be preferred first. The child will basically be kept at his
family ... then restorative (“group”) mediation will come to
function ... followed by suggestions /project by the child
itself ... followed by the other measures ... Or combination
thereof ... Paul WOUTERS - Bener Danışmanlık A.Ş.
Istanbul - Turkey

Belgium

An important innovation is the parenting training

For parents that are neglective and indifferent towards
the education of their child and the delinquent attitude it is
developping – for the benefit of the child.

The aim is to develop new interest for the future /
education of the child (minimal 30 hours).

Penalties (financial fine – prison) are possible for not
following up on the training.

Parents are supposed – subject to fine – to show up at the
hearings at Juvenile Court.
Istanbul - Turkey

Belgium
The available measures for the Juvenile Judge are (general
principles only):
-Warning / Reproach
-Written and approved “project” from the child itself, taking
responsibility for its’ actions and choosing pedagogical and / or
restorative measures that appear to be relevant and helpful
-Supervision of competent Social Services
-Community Services (maximum 150 hours – paid or unpaid)
and educational or therapeutical programs, recognized third party
activity ...
-House arrest (between 18.00 Hrs and 07.00 Hrs – so attending
school is possible – exemptions for sports aducation ... possible)
Istanbul - Turkey

Belgium

- Placement into open educational institution (from the
age of 12)
- Placement into closed educational institution (from
the age of 14 – unless serious, qualified offence from the
age of 12)
* Such measures subject to reassessment every
6 months
- Placement into central closed “national / federal”
institution (maximum stay 2 months and 5 days for
punishments of 5 to 10 years of emprisonment at least)

Istanbul - Turkey

Belgium

Placement into a youth – psychiatric institution for
intensive treatment – to enhance life quality of the child -
resocialization – integration into educational programs –
better functioning at home and environment / society –
prevention of relapse ...

Istanbul - Turkey

Belgium

II. Restorative measures

“Regular” restorative mediation will apply to all
offences. It will involve the delinquent, the parents and the
victim.
“Group” restorative mediation will involve the juvenile
delinquent (and parents and support network), the victim
(and maybe support network) and a specialized police
officer. It will be used for the more serious offences only
(judge will decide) and is also aimed to restaure towards
society. It can only be used at the level of “court” and also
a “declaration of good intentions” (towards victim and
society) will be added by the delinquent.
Istanbul - Turkey

At the Prosecutors’ Office
Belgium
prosecutor in juvenile matters
When the police report arrives at the Prosecutors’ Office, he can send
– before a decision to dismiss - a “notification of warning” to the
juvenile delinquent or order him / her and his / her parents for
personal appearance before him. He could also suggest a
parenting training. (a court can order this)
training.
When appropriate, he will systematically suggest a restorative
mediation,
mediation, and subsequent to agreement and fulfillment of that
agreement, the file will be dismissed.
The Prosecutor can also bring the file before the Judge in
Juvenile Matters.
The Prosecutor cannot decide upon any other condition or measure,
only the Judge can after “guilty” decision.
Istanbul - Turkey

Belgium
Conditions: A restorative mediation can be held:
-Serious indications of guilt
-The juvenile delinquent does not deny the facts
-The victim has been identified
-Voluntary participation of all parties (delinquent – parents –
victim)
-Can be “shuttle” mediation

Istanbul - Turkey

Belgium

-To go (or not) for the mediation must be a motivated decision
(dismissal excepted)
-Right of consultation of lawyer for the juvenile delinquent and
other parties before the start of the mediation and before
signing of the agreement
-An agreement must always be validated by the Prosecutor
(except for violation of public order)
-And success must be taken into account for the final decision
-Failure is no acceptance or indication of guilt
-confidentiality

Istanbul - Turkey

Belgium
At the Juvenile Court

-Serious indications for guilt
-The juvenile delinquent does not deny the facts
-The victim has been identified
-Voluntary participation of all parties (delinquent – parents –
victim)
-Can be “shuttle” mediation
-Can be suggested throughout the whole procedure

Right of consultation of lawyer for the juvenile delinquent
before the start of the mediation and before signing of the
agreement. At Juvenile Court, a lawyer is always appointed for
the juvenile.
Istanbul - Turkey

Belgium

Mediation by a neutral, recognized third party (mediation
service) upon request of the Prosecutor or the Judge.
If no reaction from the parties within 8 days after invitation
thereto by the Prosecutor / Judge, the mediation service
will contact the parties themselves.

Confidential – no confession – with summary report for
court to be agreed upon by all parties. Agreement only not
ratified if contrary to public order.

Istanbul - Turkey

Belgium
Given to court, together with concise report of the
Mediation services about the mediation itself.

That concise report only gives short summary of
proceedings and should not contain any information that
could “harm” any of the parties.

The mediator is bound by confidentiality: penal sanctionned
professional secrecy.
The mediation services are specially recognized services,
that will give the mediators basic trainings and follow up.

Istanbul - Turkey

Belgium

Success will be taken into account. When completion of
the agreement after the court decision, case can be re-
re-
opened in order to “soften” the measures.

If failure to complete the agreement: presumption of guilt.

Istanbul - Turkey

Belgium

The MEDIATOR
Registered at recognized Mediation Service
-Trained and updated
-Bound by professional secrecy
-Neutral, impartial to the dispute and the parties
-Cannot be witness at court
-Initiated by the Mediation Service on demand of
Prosecutors’ Office or Juvenile Judge
-Mostly recruted from competent Social Services
-Should not be confused with “victim aid”
Istanbul - Turkey

Belgium

Bener Danışmanlık A.Ş.
Yapı Kredi Plaza C Blok Kat:1
34330 Levent – Istanbul

Paul Wouters

Tel : + 90 (212) 325 02 32 / ext 127
Fax : + 90 (212) 325 10 66
Cell : + 90 (535) 656 23 24
E-mail: paul.wouters@bener.com.tr

Istanbul - Turkey

Mediation Juvenile Court

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