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.