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AND VULNERABILITY STATUS CUSTODIAL ESTABLISHMENTTYPE OF

Males and females

aged 12-14 Court-ordered secure remandor sentenced to custody Secure children’s home or STC Vulnerable males

aged 15-16 Court-ordered secure remandor sentenced to custody Secure children’s home or STC Non-vulnerable males

aged 15-16 Remanded or sentenced to cu-stody YOI Females

aged 15-16 Court-ordered secure remandor sentenced to custody Secure children’s home or STC Males and females

aged 17 Remanded to custody YOI

Vulnerable males and females

aged 17 Sentenced to custody YOI, secure children’s home orSTC Non-vulnerable males and fe-

the age of understanding, which is usually found to be at 7 or 8 years.86The judge determines the child’s level of understanding. When considering the mitigated criminal responsibility of children due to age, the judge takes into account the child’s personality, the circumstances of the offence, and the type of offence. The Supreme Court has stipulated that it is necessary for the child “to have understood and wanted” to commit the alleged offence.87

The juvenile judge has a dual competence. The judge’s civil competence is referred to as ‘assistance éducative’. It is meant to protect children at risk, “if the health, safety or morality of a non-emancipated minor are in danger, or if the conditions for his/her education are seriously compromised.”88In such cases, the judge may impose educational measures.89For many years, the tendency was to open a civil file for educational assistance, rather than a criminal file for minor offences, based on the idea that a delinquent child was above all a child at risk.90

The judge’s criminal competence is based on the Ordinance concerning delinquent children (2 February 1945).91The ordinance distinguishes between three kinds of responses.

‘Measures of protection, assistance, supervision and education’ (educational measures) for children of all ages who are deemed capable of discerning between right and wrong, and are recognised as having committed an offence. Educational sanctions can be used for children aged 10 years and above.92Educational sanctions include the measure of placement in a (public or private) educational institution or facility, and placement in a boarding-school (art. 15-1 Ord. 1945). Children aged 13-17 years may be sentenced to penalties (peines),93taking into account their mitigated criminal responsibility due to age.94

The Penal Code refers to serious offences (crimes), indictable offences (délits) and minor offences (contraventions) (art. 111-1 of the Penal Code). The type of offence determines what kind of penalty can be imposed. An indictable offence (délit) is punishable by a prison sentence of up to 10 years or a fine of at least 15,000 euros. A serious offence carries a longer prison sentence. A minor offence is punishable by a fine. For example, rape is a serious offence for which a prison sentence of 15 years can be given. In cases where the rape victim is below the age of 15, the penalty is 20 years of imprisonment.95Possession or sale of illegal drugs are offences punished by a 10-year prison sentence. All of these penalties refer to the sentences which can be given to adults. The sentences given to children must take into account the extenuating circumstance of age (excuse de minorité), in accordance with the principle of mitigated criminal responsibility.

The principle is to give a child a sentence that cannot exceed half of the sentence incurred by adults. With the introduction of the so-called ‘peines planchers’ (‘minimum penalties’), when a child is found guilty of committing a serious offence punishable for adults by life imprison- ment, for example, he/she must be given a prison sentence of at least one year.96The most recent reform of the Ordinance concerning delinquent children (2 February 1945) has made it easier to impose harsher penalties (peines), in particular to re-offending children aged 16 years and above.97In case of a crime, a 16-17-year-old child may be sentenced to seven years of imprisonment.98The extenuating circumstance of being a minor is not statutory with respect to 16-17-year-olds, meaning that the incurred sentence is the same as for adults. Children aged 13-17 years can be put on probation. Depending on the case, this is either handled by the juvenile judge, the examining magistrate or the judge of liberties and detention (juge des libertés et de la detention).99The possible obligations of a child on probation are stipulated in the law as follows: to submit to the educational measure

Table: Age thresholds and brackets for educational measures and sanctions, and penalties

The juvenile judge can impose provisional educational measures, as defined by article 8 of the Ordinance of 2 February 1945. The juvenile court (Tribunal pour Enfants (TPE)) deals with offences by children, as well as serious offences by children below the age of 16.102 Serious offences by minors aged 16-17 years are tried by the juvenile assizes court.103 A child cannot be held in police custody without the agreement of the public prosecutor’s office (parquet).104Children below the age of 13 cannot be held in police custody, no matter how serious the offence is. However, “on an exceptional basis, a minor of age 10-13 against whom there is serious or concordant evidence that he/she has committed or attempted to commit a serious felony or an offence punishable by at least five years imprisonment can, for the needs of the inquiry, be held in the custody of a judicial police officer [judicial detention] with the prior agreement and under the control of a prosecutor or an examining magistrate specialised in juvenile protection or a juvenile court judge, for a period

determined by the prosecutor, but which cannot exceed twelve hours.”105This period can be extended for a maximum additional 12 hours. A child under 10 can also be held in a police station to be heard by an officer or for protection until collected by the parents.

Judicial detention (retenue judiciaire) only applies to minors under 13 years, while police custody (garde à vue) applies to children aged 13-17 years and adults.106Children aged 13-15 years can be kept in police custody for 24 hours. This is renewable once, for the same duration, but only in the case of ‘crimes’ or ‘delits’ carrying a penalty of at least five years