Home Law International Handbook of Juvenile Justice
Ineke Pruin, Peter Aebersold, and Jonas Weber
THE LEGAL STATUS OF JUVENILES
The independent legal basis of Swiss juvenile criminal law is composed of the Swiss Juvenile Criminal Procedure Code (Schweizerische Jugendstrafprozessordnung, JCPC) of 20 March 2009 (in effect since 1 January 2011) and the Federal Juvenile Criminal Code (JCC) of 20 June 2003 (in effect since 1 January 2007). Thus, there are special legal provisions regarding the procedure as well as the sanctions and measures specifically tailored to juveniles (for changes in the juvenile criminal code vis-a-vis older legal norms, see Riesen-Kupper 2013. The preceding legal system has been described by Zermatten 2006.). The orientation of the Swiss juvenile criminal law system is thus penological in nature. Specific juvenile criminal or status offenses are not included in these laws. Rather, the criminal offenses of the Swiss Criminal Code (Schweizerisches Strafgesetzbuch, CC) apply, as do the general provisions on attempts, participation, negligence, and so on. Historically, substantive juvenile criminal law was regulated cantonally, or at the coun- try/territorial subdivision level, until the Swiss Criminal Code came into effect in 1942. Its design differed considerably in terms of age limits and sanctions. Since 1942, substantive juvenile criminal law has been regulated by Art. 82-99 of the Swiss Criminal Code (for further reference see Aebersold 2011; Hebeisen 2011; Urwyler 2011).
The well-being of the juvenile is central to both the old and new rules on juvenile justice. According to Art. 2 JCC, the protection and education of juveniles guide the application of the law, and the development of the personality of the juvenile offender is given special consideration. In addition, Art. 4 JCC emphasizes respect for personal rights and the principle of proportionality in juvenile criminal procedure. The latter is again specified by Art. 5 JCPC and Art. 21 JCC, in which the principle of discretionary prosecution (“Opportunitatsgrundsatz”) is outlined: the competent authorities refrain from criminal prosecution or, rather, a penalty, if culpability and damages are minor, if the offender has made amends, or if the offender was sufficiently punished, for example, by his/her parents or by the school. 
Specific deterrence (“Spezialpravention”) is the overarching aim of the Swiss juvenile justice system (Aebersold 2011). With regard to the provisions, the offender and his personality are at the center of juvenile justice. The aim of sanctions is to alter and prevent undesired behavior. In juvenile criminal procedure, both penalties (“Strafen”) and protective measures (“Schutzmassnahmen”) can be applied. Whereas penalties require criminal liability in the sense of culpability, protective measures (see Sect. 7 below) can be applied along with or instead of penalties if the juvenile delinquent shows a risk of “delinquent development” (“delinquente Gefahrdung,” Article 10 JCC; see Aebersold 2011). Similar protective measures can also be ordered by the child protective authority according to the Civil Law Code; those civil measures are sometimes executed in the same institutions as measures ordered by a criminal justice authority (Aebersold 2011). Only juveniles lacking residence status in Switzerland can be exempted from a protective measure although the preconditions set out by Art. 10 paragraph 1 of the JCC are met. Starting on July 1, 2016 protective measures can continue through age 25 compared to before when the maximum age limit was 22. The sanctions catalog of the JCC responds to a culpable criminal act with imprisonment and a fine (monetary penalty), initially the classic tools of criminal punishment. Beyond these, however, as with most European juvenile criminal law systems, the JCC contains a range of alternatives with specific pedagogical objectives and targets (see Chap. 9), in which community service (“personliche Leistung”) is in practice granted particular relevance (as the most applied penalty) and which in Switzerland is regarded as a sanction (and not only or predominantly as a diversion measure as in many other countries).1
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