Juvenile Criminal Law (Germany)

The juvenile criminal law is a special criminal law and a special criminal procedural law for young offenders who at the time of their act are in the transition stage between childhood and adulthood .

Legal policy considerations

The background to the need for special criminal law and criminal proceedings for young offenders is the belief that juvenile delinquency is often relatively harmless, temporary derailments (so-called episodic juvenile delinquency), which almost every young person regardless of social class (omnipresence of Juvenile delinquency) can occur during the integration into the social life of adults. In such cases, it should be made clear to the young offender by means of a serious admonition or slight sanctions ( memorandum ) that the norms of society are also binding for him, but on the other hand it should be noted that an excessive punishment can have a development-damaging effect.

The law also assumes that young offenders may still lack the ability to differentiate between right and wrong ( awareness of wrongdoing ) required for criminal liability . Even if this ability to differentiate is given, the young person often does not have the ability to act according to the insight. Therefore, according to the Youth Courts Act (JGG), in every criminal proceeding against a young person it must be positively determined that at the time of the act, according to his moral and intellectual development, he was mature enough to see the injustice of the act and to act according to this insight: The so-called responsibility maturity ( § 3 JGG). The assessment of the maturity of responsibility is different from the determination of the guilt (in) capacity in adult criminal law also dependent on the offense that the perpetrator has committed. Especially in the case of fourteen-year-old perpetrators, there may be a lack of insight into the injustice of more complex processes, even if it is fundamentally clear to them that they must not hit or steal from anyone.

Another peculiarity of young offenders is that they are more malleable than adults. This justifies that the legal consequences of juvenile criminal law in particular differ from those of general criminal law . While the amount of the penalty is largely determined by the guilt of the perpetrator, special preventive (educational) aspects are almost exclusively in the foreground in juvenile criminal law . Juvenile criminal law is therefore educational criminal law. Not atonement, retaliation, deterrence or protection of the general public, but upbringing , socialization and rehabilitation determine the type and extent of the reaction to the crime . Juvenile criminal law is criminal law against offenders. The focus is not on the offense, but on the fully honored personality of the perpetrator.

Even more than in general criminal law, the aim of youth criminal law is to restore socially adequate behavior. The importance of learning the norms and compensating for socialization deficits is particularly emphasized. Such goals - criminal control - must always be measured against the limits of the rule of law and fundamental rights . In particular, juvenile criminal law is an encroachment on the parents' educational privilege under Article 6 of the Basic Law .

Age and maturity levels

People under the age of 14 are not of age as children ( Section 19 StGB). For adults, on the other hand, general criminal law applies. The Youth Courts Act (JGG) applies in Germany for the transition period . It can be used without restriction for young people , ie for people who were between 14 and 17 years of age at the time of the offense ( Section 1, Paragraph 2, Half of the 1 JGG).

In adolescents (18- to 20-year-old) central standards (but not all) of the juvenile law in accordance with § § 105 apply ff. JGG. In particular, it is checked whether the adolescent, from his state of maturity at the time of the offense, was still to be equated with a young person with regard to the concrete act or whether he at least committed an act typical of young people. The Marburg guideline can be helpful here . In practice, juvenile criminal law is very often still applied to adolescents. This is especially true for serious crimes, so that, for example, in the group of adolescents convicted of serious violent crimes, conviction under youth criminal law is the norm (over 90 percent). The application of juvenile criminal law or adult criminal law to adolescents is handled differently in the individual countries.

The JGG applies a special regulation in the event that offenses are to be tried at the same time that the perpetrator has committed at different ages and maturities. Such a constellation exists, for example, if the offender committed an act at the age of 17, i.e. as a young person, and commits a further act at the age of 19 or 22, i.e. as an adolescent or even as an adult. For this purpose, § 32 JGG stipulates that in these cases uniform youth criminal law or uniform adult criminal law should be applied to all offenses. It is therefore inadmissible to combine a forfeited youth sentence and a forfeited custodial sentence into a total sentence. The jurisprudence justifies this with the fact that juvenile punishment and imprisonment are different, incompatible punishments.

From § 1 Abs. 2 JGG there is the further special feature that juvenile criminal law is also applicable to adults if there is a correspondingly long period between the commission of the offense and the criminal proceedings (see also: Limitation ). So z. For example, it may happen that a 60-year-old is sentenced to a youth penalty of up to 10 years for murder. For the penal system , however, the regulations for adults apply here.

Juvenile delinquency

Typical crimes committed by minors include theft, for example in the form of shoplifting , property damage (e.g. in the form of criminal graffiti ), crimes of bodily harm and secret transportation . In addition, the so-called ripping on school yards and school routes is becoming more and more common : dismissed by the young offenders mostly as trifles, these are actually robbery and extortion crimes against classmates, often with the aim of getting cigarettes, mobile phones or cash. In the group of adolescents, on the other hand, typical adult offenses such as fraud and road traffic offenses are increasingly occurring . Violations of the Narcotics Act are also common.

Sanctions

Possible sanctions

The range of sanctions is wide. Thus, the judge has a number of instruments at his disposal to find the right sanction for the offender. Section 5 JGG distinguishes between three groups: educational measures , disciplinary measures and juvenile punishment . The choice of legal consequence depends on which, according to the personality of the perpetrator, promises the best success for his rehabilitation . If several measures promise the same success, the one that represents the least interference should be chosen . It must always be noted that juvenile criminal law should not lead to a worse position of the young person: the limit of guilt-appropriate punishment must not be exceeded in juvenile criminal law either.

Relatively often, young people are required to work unpaid hours, for example in non-profit institutions. This can help young people who have dropped out of school or an apprenticeship to bring more structure into everyday life. For example, a young person or adolescent who already has a fixed income can be sentenced to - at least partial - financial compensation. The imposition of arrest, on the other hand, comes into consideration above all in the case of offenders who are not appearing for the first time, but who have not yet identified any harmful tendencies that are a prerequisite for the imposition of youth sentences. In order to achieve an optimal effect on the perpetrator, many measures can also be combined with one another.

However, since the initiation of criminal proceedings or other informal measures are often sufficient to make the young person aware of the seriousness of the misconduct, the JGG offers the possibility of refraining from prosecution ( Section 45 JGG) and discontinuing the Procedure ( § 47 JGG). This waiver of reaction is exercised in the sense of educational tolerance. He is part of the diversion .

In the event of a conviction is since 2012 as a special form of parole that Vorbewährung possible ( § 61 JGG).

Condition for the imposition of sanctions

There are no separate criminal offenses for young and adolescent offenders. Section 1 of the JGG refers to the validity of the general provisions ( criminal code , ancillary criminal law). These determine which acts are punishable and under which conditions a perpetrator can be punished. Only the legal consequences stipulated for this do not apply. Behavior that does not qualify as a criminal offense remains unpunished, no matter how reprehensible or immoral or reveals a particular need for upbringing of the young person or adolescent.

The basis of every criminal liability is therefore the existence of a legal offense at the time of the offense, also in youth criminal proceedings
Factuality: The offender must have fulfilled the criteria of the criminal law standard as well as the subjective requirements ( intent , negligence ) through his actions .
illegality: A behavior that is consistent with the facts is usually also illegal (indicative effect), unless there are grounds for justification (e.g. consent, self-defense, state of emergency, etc.).
fault: Responsibility (§§ 3 JGG, 20, 21 StGB) must be given, and reasons for exclusion of guilt (§§ 17, 33, 35 StGB) must not exist.

Procedure

The youth criminal procedure takes place within the criminal law branch of the ordinary jurisdiction . In principle, the Code of Criminal Procedure (StPO) applies to juvenile criminal proceedings , but the Juvenile Court Act differs in essential points from the provisions of the StPO. Thus, by § 43 to § 81 and § 109 apply conflicting provisions of the Code of Criminal Procedure replaced the Juvenile Courts Act. These peculiarities are also mainly due to the idea of upbringing.

The juvenile courts are responsible for sentencing young people. However, they are not independent judicial authorities, but departments of the local courts and chambers of the regional courts . In the area of the public prosecutor's office, specific departments with youth prosecutors are responsible. According to § 37 JGG, youth judges and youth public prosecutors should be “educated and experienced in youth work”, but this is only understood as a regulation and is hardly implemented in practice. Instead, the judges and prosecutors have to familiarize themselves with the matter over time. In the case of smaller local courts in particular, the judges are often responsible for adult as well as young and adolescent offenders and only act as criminal judges or juvenile judges .

A special feature of juvenile criminal proceedings is also the involvement of juvenile court assistance ( § 38 JGG), which is integrated into the process as a special body for "representing educational, social and welfare aspects". On the one hand, it has the task of providing the public prosecutor's office and the court with the necessary information when researching the personality of the accused or accused, in particular when determining the degree of maturity (§§ 3, 105 JGG). On the other hand, it should accompany the young person during the procedure.

In criminal proceedings that are only directed against young people, the public is excluded from the hearing in accordance with § 48 JGG. This does not apply to proceedings that are (also) directed against adolescents.

literature

Peter-Alexis Albrecht: Juvenile Criminal Law. A study book. 3rd, exp. and additional ed., Beck, Munich 2000, ISBN 3-406-46925-6 .

Frank Czerner: “Minors under lock and key ?” Eberhard-Karls-Universität Tübingen, Tübingen 2000 ( PDF ).

Herbert Diemer, Armin Schoreit, Bernd-Rüdeger Sonnen: JGG commentary on the juvenile court law. 5th edition, Heidelberg 2008, ISBN 978-3-8114-3401-1 .

Ulrich Eisenberg: Juvenile Court Act. 11th edition, Munich 2006, ISBN 3406484476 .

Jürgen Gehb and Günter Drange: Considerations on the reorganization of the criminal treatment of young adults. In: Journal for juvenile criminal law and youth welfare (ZJJ). No. 15, 2004, pp. 259-266.

Jürgen Gehb and Günter Drange: Adolescents in criminal law - quo vaditis? In: Deutsche Richterzeitung: Organ of the German Association of Judges, Association of Judges, Public Prosecutors, 82nd year (2004), 4, pp. 118–121.

Jürgen Gehb and Günter Drange: The ongoing problem of § 105 JGG in the practice of juvenile criminal law and in the legal political discussion. In: Central Gazette for Youth Law: Youth and Family, Youth Welfare, Youth Court Assistance. Organ of the German Institute for Guardianship, 91 (2004), 4, pp. 121–127.

Bernd-Dieter Meier, Dieter Rössner, Heinz Schöch: Juvenile criminal law. Munich 2003, ISBN 3406499139 .

Schaffstein / Beulke : juvenile criminal law . 14th edition, Stuttgart 2002, ISBN 3-17-017632-3 .

Michael Walter : Juvenile delinquency. 2nd edition Stuttgart 2001, ISBN 3415027759 .

Michael Walter: Adolescents as a criminal law problem group. In: Goltdammer's Archive for Criminal Law (GA). 154th vol., 2007, pp. 503-517.

Matthias Zieger: Defense in juvenile criminal matters . 5th edition 2008, ISBN 978-3-8114-3409-7 .