ALTERNATIVE SANCTIONS TO JUVENILES: EDUCATIONAL MEASURES, RESTORATIVE JUSTICE, AND RESTITUION
The German juvenile justice system provides for a large variety of community sanctions including restorative justice measures such as reparation, excuse to the victim, community service, and victim-offender mediation. The following graph demonstrates the disposals of the juvenile court. Home confinement or in the European terminology house arrest is not used in Germany, and in particular electronic monitoring is not an issue. Germany does not rely on technical forms of social control, but rather on social pedagogic ways of dealing with juvenile delinquency.
In cases of criminal offences as defined by the general Criminal Law, the interventions of the JJA are characterized by the principle of “subsidiarity” or “minimum intervention” (see the diagram at the end of the article). This means that penal action should only be taken if absolutely necessary. Furthermore, sanctions must be limited by the principle of proportionality. The legislative reform of the JJA in 1990, passed in the same year as that of the JWA, underlines the principle of Juvenile Court sanctions as a last resort (“ultima ratio”). Therefore, priority is given to diversion, and where the Juvenile Courts do impose sanctions, primacy is given to educational or disciplinary measures instead of youth imprisonment.
The most important response to petty offending is the dismissal of the case without any sanction being issued. In this context, one should emphasize that police diversion, like the British form of cautioning or warnings, is not allowed in Germany. The underlying reason for this is of a historical nature, lying more specifically in the possible abuse of police power as it occurred under the Nazi regime. Therefore, all forms of diversion are provided for only at the level of the Juvenile Court prosecutor or the Juvenile Court judge. The police are strictly bound by the principle of legality. All criminal offences have to be referred to the public prosecutor.
The 1990 reform of the Juvenile Justice Act in Germany extended the legal possibilities for diversion considerably. The legislature thus reacted to the reforms that had been developed in practice since the end of the 1970s. The law now emphasizes the discharge of juvenile and young adult offenders on grounds of the petty nature of the crime committed, or because of other social and/or educational interventions that have taken place (see § 45 (1) and (2) JJA). Efforts to make reparation to the victim or to participate in victim-offender reconciliation (mediation) are explicitly put on a par with such educational measures. There is no restriction concerning the nature of offences that are eligible; felony offences (“ Verbrechen”) can also be “diverted” under certain circumstances (e.g., a robbery) if the offender has repaired the damage or made another form of apology (restitution/reparation) to the victim.
We can differentiate four levels of diversion. Diversion without any sanction (“non-intervention”) is given priority in cases of petty offences. Diversion with measures taken by other agencies (parents, the school) or in combination with mediation is the second level of diversion (“diversion with education”). The third level is “diversion with intervention.” In these cases, the prosecutor proposes that the Juvenile Court judge impose a minor sanction, such as a warning, community service (usually between 10 and 40 h), mediation (“Tater-Opfer-Ausgleich”), participation in a training course for traffic offenders (“Verkehrsunterricht”) or certain obligations like reparation/restitution, an apology to the victim, community service or a fine (§ 45 (3) JJA). Once the young offender has fulfilled these obligations, the Juvenile Court prosecutor will dismiss the case in cooperation with the judge. The fourth level is the introduction of levels one to three in the Juvenile Court proceedings after a charge has been filed. In practice, the Juvenile Court judge will fairly often face the situation that the young offender has, in the meantime (after the prosecutor has filed the charge), undergone some form of educational measure like mediation, which would deem a “formal” court sanction unnecessary. Section 47 of the JJA enables the judge to dismiss the case in these instances.
Also formal sanctions of the Juvenile Court are structured according to the principle of minimum intervention (“ Subsidiaritdtsgrundsatz”; see the diagram at the end of the text). Juvenile imprisonment has been restricted to being a sanction of last resort, if educational or disciplinary measures appear to be inappropriate (see §§ 5 and 17 (2) JJA). The reform of the Juvenile Justice Act of 1990 extended the catalogue of juvenile sanctions by introducing new community sanctions like community service, the special care order (“Betreuungsweisung”), the so-called social training course (see in detail Dhnkel/Geng/Kirstein 1998) and mediation (see Dhnkel 1996, 1999; Dhnkel and Parosanu 2015). The educational measures of the Juvenile Court, furthermore, comprise different forms of directives concerning the everyday life of juvenile offenders in order to educate and to prevent dangerous situations. Thus, the judge can forbid contact with certain persons and prohibit going to certain places (“whereabouts,” see § 10 JJA). Disciplinary measures include the formal warning, community service, a fine, and detention for 1 or 2 weekends or for up to 4 weeks in a special juvenile detention center (“Jugendarrest”).
Youth imprisonment is executed in separate juvenile prisons. Youth prison sentences are only a sanction of last resort (“ultima ratio,” see §§ 5 (2), 17 (2) JJA), in line with the view espoused by international rules like the so-called Beijing-Rules of the United Nations of 1985. The minimum length of youth imprisonment is 6 months for 14-17-year-old juveniles, and the maximum limit is set at 5 years. In cases of very serious offences for which adults could be punished with more than 10 years of imprisonment, the maximum length of youth imprisonment is 10 years. In the case of 18-20-year-old young adults sentenced according to the JJA (see Section “Custodial Rules for Juveniles (Detention, Prison, Mixing Juveniles with Adults)” above) the maximum penalty is 10 years, too (see §§ 18, 109 JJA; in case of particularly serious murder 15 years). The preconditions for youth imprisonment are either the “dangerous tendencies” of the offender that are likely to exclude community sanctions as inappropriate, or the “gravity of guilt” concerning particular, serious crimes (such as murder, aggravated robbery etc.; see § 17 (2) JJA).
Youth imprisonment sentences of up to 2 years can be suspended (a similar sanction as probation) in cases of a favorable prognosis; in all cases, the probation service gets involved. The period of probationary supervision is 1 to 2 years, and the period of probation lasts for a total of 2-3 years.