Home Law International Handbook of Juvenile Justice
COURTS AND JUVENILES
All special procedural provisions in the Juvenile Court Act are applicable for juveniles (aged 14-18), and most of them are also applicable for young adults (18-21). With these adaptions to the Code of Criminal Procedure, the accused’s legal protection should be strengthened by providing stronger support during the main trial. At the same time, stigmatization during the court proceedings shall be avoided as far as possible, and the personal development of the accused shall be protected in a better way.
The court in charge is determined by the young offender’s usual place of residence to not unduly disrupt the young person’s life during the trial (§ 29 Juvenile
Court Act). Departments for juvenile cases have been established at the district and regional courts with specialized judges and prosecutors. They must have pedagogical skills and should have a certain expertise in psychology and social work (§ 30 Juvenile Court Act). Where a court of lay judges or a jury is to decide, at least half of the laypersons must be experienced in dealing with juveniles as teachers or social workers in youth welfare. Moreover, at least one lay judge or two jury members, respectively, must be of the same gender as the accused (§ 28 Juvenile Court Act).
The aim to increase the protection of the young offender should be achieved by a confidante being present during the entire proceedings (§ 37 Juvenile Court Act). Some procedural rights can be exercised not only by the young offender himself, but also by the legal guardian. Also the applicability of mandatory defence and the access to free legal aid is extended in cases of young alleged offenders (§§ 39 et seq. Juvenile Court Act).
In Austria, the principle of publicity (Offentlichkeitsprinzip) is stipulated for trials. This can be restricted if in the interest of the juvenile (§ 42 Juvenile Court Act). For example, if public proceedings might reflect negatively on the development of the young accused, the trial will be closed to public and media (Schroll 2010). Furthermore, the young person’s identity is particularly protected from being revealed under media law (§ 7a Mediengesetz). Therefore, also access to police records on juveniles is restricted (§ 33 Juvenile Court Act) and the data are deleted earlier than in cases of adults (§ 3 Tilgungsgesetz).
A Juvenile Court Assistance (Jugendgerichtshilfe) is established in Vienna (Essenther 2003) and at some other courts to support the judges. This support should help the court to act in the best interest of the young offender. At the moment, an ongoing project aims at instituting such units at all courts specialized on juvenile decisions. However, where no Juvenile Court Assistance is established at the moment, the tasks have to be carried out by the regional youth welfare organizations. The Juvenile Court Assistance provides the prosecutors and judges with youth inquiry reports. Those reports contain important information on the accused’s family, social, educational, and health-related situation, and the background in general (§§ 47 et seq. Juvenile Court Act). In case of doubt, a medical expert or a psychologist should be consulted. The information is intended to support the court especially in choosing the most effective sanction in every single case. But it is left to the judge’s discretion which information of the inquiries are necessary and used for the decision.
When the juvenile is already under the supervision of a probation officer, the probation officer can (also) provide important information to the court, because he is entitled to be present and to be heard at the main trial (§ 40 Juvenile Court Act). At the same time, he is also entitled to abstain from any statement in the main trial to sustain the mutual trust between him and his young client (see p. 234).
Although in Austria there are high standards of victims’ rights, these are partly restricted in juvenile cases. So-called “private suits” or “subsidiary suits”, for example, are inadmissible, as is joining the proceedings as a private party
(§ 44 Juvenile Court Act). Thereby, the aim of the Juvenile Court Act to protect the young offender is persuaded consequently.
At last, the court has to order the sanction. Juvenile law covers a wide range of sanction possibilities in JGG. The court orders a diversionary measure (see more under alternative sanctions for juveniles), or, in cases of a conviction, a fine or a prison sentence, both can be partly or fully suspended. These last two “traditional” sanctions may only be implemented as a last resort (ultima-ratio principle). The court, on a case by case basis, must always choose the sanction that causes the least impact on the lifestyle of the minor, yet which at the same time has the best special preventative effect (Jesionek and Edwards 2010; Loschnig- Gspandl 2002).
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