Criminal law and minors

Juvenile criminal justice is guided by a principle of autonomy, expressed in the existence of a specific text (Ordinance of 2 February 1945 on delinquent childhood, since codified in the Juvenile Criminal Justice Code), and meaning that the criminal law applicable to delinquent minors, both substantively and procedurally, rests on a set of specific rules derogating from ordinary law.

However, that principle is not absolute: the law applicable to delinquent minors is specific only where specific provisions exist; for the rest, ordinary law applies. Two recent decisions of the Criminal Chamber illustrate this.

The framework of the Juvenile Criminal Justice Code

A first decision (Crim., 10 April 2019, appeal no. 19-80344) concerned the maintenance in pre-trial detention of a minor under 16 at the time of the facts, pending judgment for the murder of his sister. The minor challenged the decision on the ground that it lacked any legal basis.

The Criminal Chamber confirmed the investigating chamber's decision and dismissed the appeal: "in confirming his detention, the investigating chamber did not breach any of the conventional or domestic provisions invoked, since it can be inferred from the first paragraph of Article 9 of the Ordinance of 2 February 1945, on delinquent childhood, that in the absence of specific derogatory provisions for minors, those of Article 179 of the Code of Criminal Procedure on maintenance in detention apply in case of committal of a minor aged between thirteen and sixteen for a crime before the juvenile court".

Educational measures, sanctions and reduced liability

A second decision (Crim., 26 June 2019, appeal no. 19-82745) concerned the appeal against the committal order of a minor for a crime. A minor prosecuted for a crime must be committed, depending on age, before the juvenile court (if under 16) or before the juvenile assize court (if over 16). In this case, an individual aged under 16 at the time of the facts, prosecuted for the rape of his cousin aged under 15 at the time, was committed before the juvenile court. The appeal was rejected on the ground that only the order committing to the juvenile assize court is open to appeal under the same conditions as that committing an adult before the assize court.

Procedural guarantees specific to minors

The Criminal Chamber quashed the decision under Articles 24 of the 1945 Ordinance, 186 of the Code of Criminal Procedure and 6 of the European Convention: "it can be inferred from these texts that the order committing a minor for a crime, either before the juvenile assize court or before the juvenile court ruling in criminal matters, may be appealed under the same conditions as an order committing an adult before the assize court". Beyond the technical reading, the reference to Article 6 of the European Convention underlines that the right to a fair trial prohibits placing the minor in a less favourable position than an adult tried for the same category of offences.