Home Law International Handbook of Juvenile Justice
CUSTODIAL RULES FOR JUVENILES
Pretrial detention (Untersuchungshaft) is governed by the Code of Criminal Procedure and has to be imposed by court where there is the risk of absconding, suppressing evidence, or of an imminent criminal act. In addition to the general rules—which require its application to be proportionate to the offence, i.e. to the probable punishment, and as short as possible—detaining minors in pretrial detention should only be a measure of last resort and is strictly limited by the Juvenile Court Act (§§ 35 et seq. Juvenile Court Act).
Not only is the maximum duration shorter than for adults, but the special criteria are also stricter. Pretrial detention is not permitted—even if the legal preconditions exist—if the purpose of detention can be achieved by a family law or welfare measure, albeit with softer methods. This is the case, for example, if the aim can be achieved by the minor undergoing treatment for drug addiction or in a residential care facility.
Moreover, the minor may only be detained if the related disadvantages for the personal development or for the reintegration into society are not out of proportion with the offence. Thus, an evaluation of interests must be made with utmost care but at the same time rapidly. The younger the suspect is (Jesionek and Edwards 2010), the greater is the likelihood of rejecting the detention.
However, the proportionality rule applies not only to the detention in relation to the offence, but also to the probable punishment. In a ruling, the Supreme Court has taken to interpreting this literally and thus exclude any pretrial detention as long as no punishment at all is to be expected (conviction without sentence, conviction with suspended sentence). There has also been a new rule since 2015 stating that pretrial detention is not allowed in cases which fall within the remit of district courts (see § 35 Juvenile Court Act).
To avoid the unnecessary extension of the time in custody and the delays in legal proceedings, the duration of arrest should generally not exceed 48 h.
Remand in custody is reviewed according to the general regulations of the Code of Criminal Procedure. Thus, the first control should take place at a hearing after 14 days, the second after a month, and all further hearings every other 2 months. The maximum period for pretrial detention of minors may not exceed 3 months, in cases within the jurisdiction of mixed courts or juries trials 6 months, in extraordinary cases 1 year.
Recently, the possibility to convene a so-called “Pre-trial Detention Conference” (“ Untersuchungshaftkonferenz”), headed by a probation officer and with the cooperation of the Juvenile Court Assistance, has been created. It aims at the early release from custody. The accused has to consent to this kind of “Socialnet-Conference”.
Altogether pretrial detention should be avoided as far as possible (Ministry of Justice 2013).
If a pretrial detention has to be ordered, the Juvenile Court Act tries to protect the rights of the minors comprehensively. It grants the minor a special right of participation of trusted adults from the first pretrial proceedings onward. The legal guardian must be notified that the juvenile has been arrested, unless there is a plausible reason not to do so. Moreover, a parole officer already appointed to the minor can also act as a trusted adult. The adult also has the right to attend the main trial and to be heard in it. Furthermore, the legal representative is granted all the same legal rights as the accused minor. In addition, the court must appoint a pro bono attorney, if necessary. This must be accomplished by the time of the first legal proceedings in court (first questioning).
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