The influence of criminal law on youth justice

Youth justice and ‘regular’ criminal law: two different, independent legal areas. On the one hand youth justice, which has been characterized as ‘sui generis’ and thus uses its own conceptual framework and follows its own principles, and on the other hand criminal law, which features a conceptual and functional autonomy and acts according to a completely different philosophy. In addition, in the field of children’s rights criminal law is often seen as something ‘negative’, something which cannot be involved when it comes to the treatment of children. However the link between youth justice and criminal law cannot be denied, take for instance the possible offences, the criminal procedural rules which apply on youth justice etc. This tension between on the one hand autonomy and on the other hand dependence is a constant in the youth justice-criminal law-relation and is the inspiration for this research. This research wants to clarify the relationship between both branches of law by examining to what extent certain criminal justice standards should (not) have an influence in Flemish youth justice.

In a first step, the historical roots of Flemish youth justice are unraveled, paying special attention to the period before the Child Protection Act of 1912 and the legislative attempts and practical initiatives to incorporate the treatment of juvenile delinquency into classical criminal law.

In a second step, four (classical) criminal justice standards are selected: the principle of proportionality in decision-making, the right to a trial within a reasonable time, the right to an impartial judge, and the right to a public trial. Of each of these standards, the classical meaning (in criminal cases) and the child-specific meaning (in youth justice) are determined using international sources. The child-specific meaning of the criminal justice standards is then assessed (explained and evaluated) using the youth justice fundamentals. The youth justice fundamentals are the requirements that only characterize youth justice systems. The requirements that must be met by both youth justice systems and traditional criminal justice systems are not taken into account. There are six youth justice fundamentals: constructiveness, individuality, active involvement, integrity, stability, and informality. It follows from these evaluations that certain criminal justice standards should be applied less absolutely in youth justice than in criminal cases, and that certain criminal justice standards should be given a different interpretation in youth justice than in criminal cases. 

In a third step, the results of the second part will be tested on the case level: is Flemish youth justice in accordance with the obtained results concerning the mandatory or prohibited role of the selected criminal justice standards? How does Flanders deal with its policy freedom? After describing the core characteristics of current Flemish youth justice, a further examination of whether the proportionality principle, the right to a trial within a reasonable time, the impartiality of the judge and the principle of publicity are applied in Flemish youth justice will occur, and if so, how these standards are interpreted in Flanders. However, conclusions on our Flemish youth justice system cannot be generalized towards other systems. For this reason, in addition to the Flemish youth justice we look into the youth justice system of Chile, a legal system where - just like in Flanders - a responsibility model is used.

In a final step, the results of the different parts are collected and commentary given. The research concludes with some recommendations regarding the direction in which youth justice as a legal area should evolve, considering the compulsory or possible influence which criminal law standards have on youth justice.