Jantien Leenknecht, PhD Fellow of the Research Foundation Flanders (FWO), KU Leuven, Institute for Social Law and Leuven Institute of Criminology
The Directive 2016/800 of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (Children Directive) is the first legislative instrument in EU criminal law that contains binding provisions which explicitly and exclusively concern juvenile suspects and defendants. It was adopted in implementation of the 2009 Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, issued by the Council of the EU in 2009. It was more specifically measure E that required “special attention to suspected or accused persons who cannot understand or follow the content or the meaning of the proceedings, owing, for example, to their age, mental or physical condition”. Despite the increased attention to vulnerable suspects and the Council’s non-exhaustive list of vulnerability indicators, age is still the only factor that has led to binding provisions concerning procedural safeguards for vulnerable suspects and defendants. Minors are thus the only group who are unanimously considered to be an example par excellence of vulnerable suspects and defendants. The 71 recitals, which provide additional explanation and interpretation of the directive’s provisions, nevertheless suggest that the road to the Children Directive has not been without obstacles. Among others, its scope of application is limited to strictly criminal proceedings, which raises the question of whether the Children Directive also applies to youth justice proceedings. This contribution aims to provide an answer by distinguishing between youth justice systems with a justice approach (Austria and the Netherlands) or a welfare approach (Belgium and Poland).
Restrictive scope of the Children Directive
The first two articles state that the Children Directive applies to children who are suspects or accused persons in criminal proceedings, or who are subject to European Arrest Warrant (EAW) proceedings. The term ‘criminal proceedings’ is undefined, but recital 17 of the preamble provides that the Children Directive should only apply to criminal proceedings. More specifically, it should not apply to “proceedings which are specially designed for children and which could lead to protective, corrective or educative measures”. This is quite restrictive, as some Member States label their youth justice system as not purely criminal, but indeed (also) as protective, educative, restorative or welfare-oriented. Other States have chosen to situate their youth justice outside the realm of criminal justice altogether, to avoid the stigma relating to the formal criminal label or to ensure that juveniles receive a milder treatment. Such youth justice proceedings are not included in the current scope of the Children Directive, as only Member States subjecting children to proceedings with a formal criminal justice nature would be obliged to comply with its provisions. However, a juvenile suspect or offender should receive an equivalent level of protection in all cases where they are exposed to some form of punishment, irrespective of whether the nature of the proceedings is formally criminal or rather educative or protective. At the level of the Council of Europe, such consistent protection has been guaranteed ever since the Engel case law of the European Court of Human Rights, which considers the substantial punitive nature of the proceedings to be decisive to grant procedural rights. The EU Court of Justice, by contrast, has not yet adopted such an autonomous definition. Instead, its application rather seems to depend on the domestic legislation of each Member State, which might lead to a non-homogenous implementation of the procedural safeguards enshrined in the Children Directive.
As the reasoning above is purely from a legal-theoretical perspective, it is interesting to look at how Member States themselves have interpreted the scope of the Children Directive and whether or not they have implemented it into their national criminal justice and/or youth justice systems. Its transposition deadline was the 11th June 2019, so all Member States should have implemented the Children Directive by now. Denmark and Ireland are the only exceptions who have opted out and did not opt-in respectively. This blog post does not seek to assess the transposition in each Member State and is therefore limited to four Member States: Austria and the Netherlands (as representatives of a more justice- or sanction-oriented approach), and Belgium and Poland (as representatives of a protection or welfare model).
Transposition in sanction versus welfare youth justice systems
Both Austria and the Netherlands refer to their youth justice system as ‘juvenile criminal law’ (Jugendstrafrecht and jeugdstrafrecht respectively), whereas Belgium and Poland have a tradition of ‘youth protection law’. Austria, Belgium and Poland have separate acts that contain procedural provisions for juvenile offenders, being the Youth Court Act (Jugendgerichtsgesetz, JGG), the Youth Protection Act (Jeugdbeschermingswet, JBW) and the Act on proceedings in juvenile cases (Ustawa o postępowaniu w sprawach nieletnich, JA) respectively. In contrast to this, The Netherlands have integrated specific provisions regarding youth justice proceedings in their general Code of Criminal Procedure. All four Member States have nevertheless developed specific rules in response to delinquent behaviour of minors which are somewhat different from ‘general’ criminal law. The common criminal (procedural) law provisions only apply whenever there is no specific provision provided for juvenile suspects or offenders, e.g. the range of possible investigative measures.
Austria and The Netherlands have transposed the Children Directive, and more specifically in their youth justice legislation. Austria has more specifically modified the Jugendgerichtsgesetz and the Netherlands has amended the part of its Code of Criminal Procedure relating to the criminal procedure in cases concerning juveniles. It can therefore be concluded, or rather confirmed, that they consider their youth justice system to be a specific, adapted type of criminal justice system. The Dutch parliament and government nevertheless objected that certain guarantees in the Children Directive are not procedural in nature and can therefore hardly find their legal basis in article 82 (2) (b) TFEU, which allows the EU to establish minimum rules regarding the rights of individuals in criminal procedure. It refers for example to the specific treatment in the case of deprivation of liberty (art. 12) or the training requirements for staff in youth detention institutions (art. 20).
In Belgium and Poland, on the other hand, there were doubts regarding the application of the Children Directive in their youth justice system. In Poland, the legal amendments post 2016 to the Juvenile Proceedings Act and to Code of Criminal Procedure do not refer to the Children Directive, but only to other procedural rights directives, in particular directives 2013/48 on the right of access to a lawyer (A2L) and 2016/1919 on the right to legal aid. Belgium has not introduced an act that specifically transposes the Children Directive either. The Youth Protection Act has indeed not been modified because the Belgian legislator and the Minister of Justice consider its youth ‘protection’ proceedings not to be of a criminal nature. However, they do admit that the Children Directive applies to the exceptional situation in which a minor is transferred to the criminal justice system to be tried and punished according to ordinary criminal law (art. 57bis JBW). As a result, the Code of Criminal Procedure should be modified in order to comply with the Children Directive, but the Belgian federal department of justice is convinced that its criminal legislation concerning the procedural guarantees of suspected or accused persons goes further than the EU minimum standards. According to article 62 JBW, the criminal procedure provisions nevertheless also apply in youth justice proceedings in the absence of specific provisions in the Youth Protection Act. In that way, minors treated under the youth justice system would still indirectly benefit from the protection provided by the Children Directive.
Conclusion
A brief analysis of the transposition of the Children Directive in four Member States confirms the theoretical fear that the limitation of its scope to (formal) criminal proceedings has significant consequences for its applicability across the EU. The implementation of the procedural rights for juvenile suspects and defendants provided by the Children Directive more specifically seems to depend on the label that is attached to the national youth justice systems. Member States that adopt a justice or sanction approach, such as Austria and The Netherlands, have easily implemented the provisions of the Children Directive because they consider their youth justice proceedings to be a type of criminal proceeding, and are therefore included in the Directive’s scope. However, Member States with a protective or welfare-based approach, such as Belgium and Poland, on the other hand, dissociate their youth justice proceedings from criminal legislation. The transposition of the Children Directive is therefore less evident in those States, so that the Directive’s procedural safeguards could only find their way to welfare- or protection-oriented youth justice systems by being adopted from the criminal procedural legislation. It is time for EU legislators to look beyond the national classification of systems and to adopt an autonomous definition of ‘criminal proceedings’ instead, which preferably takes the actual punitive nature of systems into account in order to ensure an equal level of protection of juvenile suspects and defendants across the EU.
