The position of youth justice in EU criminal law: No game for kids
| Author | Johan Put,Jantien Leenknecht |
| Date | 01 June 2020 |
| DOI | 10.1177/2032284420911093 |
| Published date | 01 June 2020 |
| Subject Matter | Articles |
Article
The position of youth justice
in EU criminal law: No game
for kids
Jantien Leenknecht
KU Leuven, Belgium
Johan Put
KU Leuven, Belgium
Abstract
In criminal matters, the European Union (EU) managed to establish several mechanisms to
strengthenand facilitate judicial cooperation over the yearsbut does not clearly nor uniformly define
the concepts of ‘criminal matters’, ‘criminal proceedings’, ‘criminal responsibility’ and so on in any of
the cooperation instruments themselves. It is however important to know as to what the EU
understands by the notion ‘criminal’ because Member States have developed specific rules in
response to delinquent behaviour of minors, which are somewhat different from ‘general’ criminal
law. The question arises whether the existingcooperation mechanisms only apply to ‘adult’ criminal
matters or also include youth justice matters. This article therefore aims to find out whether a
consistentand shared view exists on the meaningof the concept ‘criminal’ and to subsequently clarify
to what extent the existing EU instruments in criminal matters also apply to juvenile offenders.
Keywords
Youth justice, juvenile jus tice, European criminal law , ground for refusal, mutual re cognition,
procedural rights directives
Introduction
More than 1 million minors
1
are exposed to criminal proceedings in the European Union (EU)
every year.
2
Some of them committed an offence beyond their national borders, as was the case
Corresponding author:
Jantien Leenknecht, PhD Fellow, Research Foundation–Flanders, Institute for Social Law and Leuven Institute of Crimin-
ology, KU Leuven, Blijde-Inkomststraat 19, 3000 Leuven, Belgium.
E-mail: jantien.leenknecht@kuleuven.be
1. The notions ‘minor’ and ‘child’ are used interchangeably in this contribution.
2. Commission, ‘Commission Staff Working Document – Impact Assessment accompanying the document Proposal for a
Directive of the European Parliament and of the Council on procedural safeguards for children suspected or accused in
criminal proceedings’ SWD (2013) 480 final, 30.
New Journal of European Criminal Law
2020, Vol. 11(2) 135–160
ªThe Author(s) 2020
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DOI: 10.1177/2032284420911093
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with the murder of Joe Van Holsbeeck
3
(Adam G. and Mariusz O.) in 2006 and in the Eindhoven
‘Kopschopper’ case
4
from 2014. The occurrence of such cross-border cases is certainly becoming
more common since the introduction of the internal market and its four fundamental freedoms. Not
surprisingly, this leads to an increased attention to youth justice over the last decade, which is
reflected in various European initiatives for criminological, policy and legal research.
5
The lively
debates on youth justice contrast sharply with the silence of the EU legislator in the field. There is
no specific regulatory action at EU level that aims at facilitating a cooperation between Member
States in youth justice.
6
In criminal matters, the EU managed to establish several mechanisms to strengthen and facil-
itate judicial cooperation over the years but does not clearly nor uniformly define the concepts of
‘criminal matters’, ‘criminal proceedings’, ‘criminal responsibility’ and so on in any of the coop-
eration instruments. It is however important to know as to what the EU understands by the notion
‘criminal’ because Member States have developed specific rules in response to delinquent beha-
viour of minors, which are somewhat different from ‘general’ criminal law.
7
The question arises
whether the existing cooperation mechanisms only apply to ‘adult’ criminal matters or also include
youth justice matters. This article therefore aims to find out whether a consistent and shared view
exists on the meaning of the concept ‘criminal’ and to subsequently clarify to what extent the
existing EU instruments in criminal matters also apply to juvenile offenders.
This articlefirst briefly outlines the legalbasis on which the EU competencein criminal matters is
based and the resulting problem definition. It then distinguishes between three types of instruments
that are relevant to the analysis of the position of youth justice in EU criminal law: (1) mutual
recognition instruments with an age refusal ground, (2) mutual recognition instruments without an
age refusal groundand (3) the procedural rightsdirectives. Subsequently,the scope of application of
each type of legislation is examined on the basis of three interpretations of the criminal concept: a
classical, a formal and a substantive interpretation. The preparatory works of the EU criminal law
3. Two Polish boys aged 16 and 17 years, stabbed Joe to death at the central station in Brussels because he did not want to
hand over his MP3 player. The boys fled to Poland and were surrendered to Belgium, provided that they could return to
Poland in case a placement measure should be executed: accessed 14
January 2020; Emmanuelle De Bock, ‘Juridische obstakels voor uitlevering niet onoverkoombaar in zaak Joe Van
Holsbeeck’ (2006) 129 Juristenkrant 6.
4. Eight boys between 15 years and 19 years of age, of whom 5 Belgians, kicked a 22-year-old man on his head several
times after an out in Eindhoven. Two of them were finally surrendered to the Dutch court to be tried under Dutch
juvenile criminal law:
accessed 14 January 2020.
5. Examples of such initiatives are as follows: ‘My Lawyer, My Rights’, ‘Procedural Rights of Juveniles suspected or
accused in the EU’, ‘Twelve’, ‘Children’s Rights behind Bars’, ‘Juvenile Offenders Detention Alternative in Europe’
(JODA) and so on.
6. UN Committee on the Rights of the Child, ‘General comment No. 24 (2019) on children’s rights in the child justice
system’, nr. 8 ¼6QkG1d%2fPPRiCAqhKb7yhsqIkirKQ
ZLK2M58RF%2f5F0vEnG3QGKUxFivhToQfjGxYjV05tUAIgpOwHQJsFPdJXCiixFSrDRwo
w8HeKLLh8cgOw1SN6vJ%2bf0RPR9UMtGkA4> accessed 14 January 2020: Child justice refers to the legislation,
norms and standards, procedures, mechanisms and provisions specifically applicable to, and institutions and bodies set
up to deal with, children considered as offenders. The United Nations Convention on the Rights of the Child no longer
used the notion ‘juvenile justice’ but acknowledges and encourages the trend towards using terms such as ‘youth justice’
and ‘child justice’.
7. Ido Weijers and Frank Imkamp (eds), Jeugdstrafrecht in internationaal perspectief (Boom Juridische Uitgevers, Den
Haag 2008) 337.
136 New Journal of European Criminal Law 11(2)
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