Defense in juvenile criminal proceedings

What happens to juveniles who commit crimes?

Especially in juvenile criminal law, the early engagement of a qualified defense attorney is crucial, as juveniles and young adults have special legal protection needs within the proceedings. We aim to ensure that these are taken into account and that fair treatment is guaranteed to best uphold your rights.

If you, as a juvenile or young adult, are involved in criminal proceedings, or if your child is accused in a criminal case and you are uncertain about what to do, it is best to contact us immediately so we can explain how to proceed.

The overarching goal in most cases is, of course, the dismissal of the case during the investigation phase. If this is no longer possible, there are numerous alternative options available for us as defense attorneys in juvenile criminal law to achieve the most lenient sanction possible.

Juvenile delinquency – Cause for concern or normality?

According to police crime statistics, 21% of crimes committed in 2023 were carried out by juveniles. Young people, therefore, commit crimes relatively frequently.

In most cases, this happens regardless of their family background or nationality but rather due to their physical-biological development and existing psycho-social pressures. Young offenders are biologically, psychologically, and socially in a transitional stage, often accompanied by tensions, insecurities, and difficulties in adapting, particularly in terms of adopting behavioral norms.

In the vast majority of cases, criminal behavior is only temporary and resolves itself once the juvenile’s maturation process is complete.

Typical juvenile offenses include theft, bodily harm, trespassing, and, most notably, traffic offenses.

When a juvenile commits a crime, they are not sentenced to a fine or imprisonment as is the case under adult criminal law. Instead, juvenile criminal law applies, which provides a broader range of possible educational measures. This is due to the increased sensitivity of juvenile criminal law as well as the specific needs of juveniles, which must also be considered when determining the sentence.

When does juvenile criminal law apply?

Pursuant to § 1 JGG, juvenile criminal law applies when a juvenile or a young adult commits an offense (crime or misdemeanor) that is punishable under general regulations.

A juvenile is defined as someone who is at least 14 but not yet 18 years old at the time of the offense. A young adult is someone who is at least 18 but not yet 21 years old.

Juveniles are considered “conditionally criminally responsible” under § 3 JGG. This means it must be positively determined whether the individual juvenile had the capacity for responsibility at the time of the offense. This is generally the case if the presence of so-called insight capability and the ability to act can be affirmed. Insight capability consists of ethical maturity, intellectual maturity, and the presence of an awareness of wrongdoing. The ability to act refers to the capacity to align one’s behavior with one’s own insight.

Young adults are fully criminally responsible. Whether juvenile criminal law or adult criminal law applies to a young adult is determined on a case-by-case basis. The key factors are the young adult’s level of maturity at the time of the offense and whether, in the specific case, they could still be equated with a juvenile—for example, if the offense committed was typical of juvenile behavior.

From the age of 21, only adult criminal law applies, and the application of juvenile criminal law is excluded.

Defense Options – No Punishment?

IIn the defense of juveniles and young adults, it is particularly important to conduct an early initial meeting to explain the criminal process and its specific characteristics to the young client, who is still in the developmental stage. This helps to safeguard their interests, ensure fair and appropriate treatment, and achieve the best possible outcome for them. Special emphasis is placed on the client’s life situation and future plans to better predict the sanction and corresponding legal behavior.

Juvenile criminal law offers a variety of sanction options, including educational measures, disciplinary measures, and juvenile detention. The principle of subsidiarity applies within these sanctions. This means that an educational measure, as a milder sanction, must generally be imposed first before considering disciplinary measures or even juvenile detention.

If accused of a serious crime and an acquittal appears unlikely, we, as defense attorneys, will aim for the mildest possible sanction—seeking the imposition of an educational measure.

As defense attorneys in juvenile criminal law, we first examine whether the conditions for the dismissal of the proceedings are met. Additionally, we advise the juvenile or young adult and, if necessary, their guardians on what actions they can take to facilitate a dismissal of the case. A dismissal is generally possible if the offender has no prior convictions, their guilt is considered minor, and there is no public interest in prosecution.

Diversion – Waiving the prosecution of the offense

If a “standard dismissal” is not feasible or seems hopeless, we strive for a termination of proceedings in accordance with the “diversion regulations.” Diversion can result in waiving the prosecution of the offense, thereby avoiding a juvenile criminal law reaction through a judgment if educational influence is ensured under §§ 45, 47 JGG.

According to § 45(1) JGG, the public prosecutor may refrain from punishment if it is the offender’s first offense, involving juvenile-typical misconduct with minimal guilt and no special educational measures are necessary.

Alternatively, § 45(2) JGG allows for waiving punishment if an educational measure has already been taken or initiated against the juvenile/young adult, which has a sufficient impact on them, making the involvement of a juvenile judge unnecessary. Educational measures can include sanctions imposed by parents, schools, or juvenile court assistance.

Furthermore, § 45(3) JGG permits the termination of proceedings if the young offender admits to the alleged wrongdoing and a directive or condition is imposed. Such conditions may include performing community service, compensating the victim, or contributing a monetary amount to a charitable organization.

Offender-Victim Mediation

Another strategic defense option is the so-called offender-victim mediation. The primary goal here is to provide restitution for damages. The mediation is carried out between the alleged offender and the victim through an apology by the alleged offender, a discussion, reconciliation, or an admission of wrongdoing. The purpose is to help the victim regain a sense of control (victim protection). However, offender-victim mediation is only considered for minor to moderately severe offenses. If the mediation is successfully completed, the proceedings will be terminated by the public prosecutor’s office.

Out-of-Court Settlement – Agreement and Negotiation

In some cases, it may also be sensible to seek an agreement with the court and public prosecutor’s office regarding the outcome of the proceedings. In this case, the juvenile or young adult would need to agree to fulfill certain conditions.

Another task on our part is to prevent or, in any case, mitigate the negative consequences of the penalty and the process. Possible negative consequences include compensation payments to the victim, potential termination of employment, a negative criminal record, or possible consequences related to residency status.

When can a juvenile sentence be imposed?

A juvenile sentence, according to § 17(2) of the Juvenile Court Act (JGG), is generally only applied as a last resort in juvenile criminal law. Detention is only ordered if “educational measures or disciplinary actions are insufficient for education due to the harmful tendencies of the juvenile, or if punishment is required due to the severity of the offense.”

However, the term “harmful tendencies” is outdated and imprecise. It primarily refers to significant developmental or educational deficiencies that, without prolonged comprehensive education of the offender—through a juvenile sentence—pose a risk of further offenses. Typically, this requires that serious personality deficiencies in the offender were already present before the offense. In certain cases, a juvenile sentence may also be necessary due to the severity of the offense. Key factors for evaluation include the circumstances of the offender’s personal guilt, their character, personality, and motivation for the offense, as reflected in their culpability.

In most cases, the responsible juvenile judge will only impose a juvenile sentence if all other educational measures have already been tried or are deemed futile from the outset. This approach stems from the design of juvenile criminal law as an educational criminal law. The concept of education is always the foundation, justification, and limit for the application of juvenile criminal law. The primary goal of juvenile criminal law is to prevent the juvenile or young adult from reoffending, thereby also protecting the public. However, every measure in juvenile criminal law also constitutes a sanction and represents an infringement on the offender’s freedom.

The juvenile sentence is considered the most severe measure in juvenile criminal law. The minimum sentence is 6 months, and the maximum is 5 years. This limitation also aligns with the educational objective, based on the assumption that a residential education lasting less than 6 months or more than 5 years is unlikely to be successful.

Nevertheless, in certain cases, a prison sentence of up to 15 years can be imposed. This underscores the importance of a strong criminal defense in every case.

Special Features in Juvenile Criminal Proceedings

A distinctive feature of juvenile criminal proceedings is the involvement of the Juvenile Court Assistance and their potential questioning of the juvenile. The Juvenile Court Assistance is a department of the Youth Welfare Office that supports juveniles before, during, and after the court hearing and is responsible for representing educational and social aspects in the proceedings. Employees of the Juvenile Court Assistance are not bound by confidentiality obligations toward the court. However, the juvenile or young adult is not obligated to participate in such a discussion. Participation can, however, be advantageous. We will advise you regarding this decision and explain the pros and cons.

Once proceedings are initiated against the juvenile, parents or legal guardians also have the right to be heard, ask questions or submit applications, and be present during investigative actions.

In proceedings against a juvenile or young adult, there is often public interest. This frequently results in increased pressure from investigative authorities, which should not work to the disadvantage of the juvenile.

To ensure comprehensive protection of the defendant’s personality, the public is excluded from the main hearing. This also applies to press and photo coverage. Neither photos nor the defendant’s name, nor any other details that could identify them, may be published. To ensure this protection, we, as defense attorneys, will take all necessary measures.

Appointment of a Court-Appointed Defense Counsel

The appointment of a necessary defense counsel/court-appointed defense attorney occurs significantly more frequently in juvenile criminal cases than in adult criminal law. Juveniles or young adults who have committed a crime are often in financially precarious or socially disadvantaged situations and depend on such an appointment.

A court-appointed defense attorney must be assigned to the juvenile or young adult, in addition to the grounds for appointment under § 140 StPO, which also apply in adult criminal law, particularly when the imposition of a juvenile sentence is being considered, or the placement in a psychiatric hospital or rehabilitation facility is expected. Another reason exists if the legal guardians are unable to participate in the proceedings due to suspected involvement in the offense or reasons of state security.

Furthermore, a defense attorney must always be appointed for the juvenile if they are already serving pretrial detention or temporary placement.

The law firm Mügge, Dr. Pitschel & Partner is well-versed in juvenile criminal law and has extensive practical experience. We strive at all times to have proceedings dismissed to avoid a burdensome main hearing. If you have any questions, feel free to contact us.