COURTS AND JUVENILES
Swiss juvenile criminal law recognizes a series of alternative disposition options that are mandated not by the juvenile courts, but by the investigative authorities. For one, alternative procedural settlements as defined by the opportunity principle play a large role. For another, summary proceedings without trial (“Strafbefehlsverfahren”) are accorded a superior position in practice because of its heavy use by the investigative authorities. The organization of the investigative authorities varies from canton to canton (Am et al. 2011; Urwyler 2011), which is why the JCPC speaks more generally about “investigative authorities” (e.g., Art. 5). The precise form of the administrative structure is set by cantonal introductory laws. In the overwhelmingly French-speaking cantons, juvenile judges conduct the inquisitorial criminal investigation from the very beginning and subsequently preside over the juvenile court or “juvenile judge model” (Jugendrichtermodell) (Zermatten 1990, 2006). In these circumstances, according to Art. 21 JCPC, the canton must provide a juvenile prosecution service, which is responsible for the arraignment in juvenile court and which can take part in the main hearing. Given this, the fact that criminal investigations are not stringently separated from the court proceeding is discussed controversially in Swiss legal practice because it raises the question of the impartiality of juvenile judges (Aebersold 2011; Hebeisen 2010; Murer Mikolasek 2011; Trechsel 2002). Through Art. 9 JCPC, the law strives to accommodate criticism of this model such that the juvenile or his/her legal representative can demand that the juvenile judge leading the investigation does not participate in the main hearing.
In the overwhelmingly German-speaking cantons including Bern and Tessin, the criminal investigation process is conducted by a special investigative authority called Juvenile Council Service (“Jugendanwaltschaft”) (Art. 6 paragraph 4 JCPC “Juvenile Counsel Model,” “Jugendanwaltmodell”). In cantons with juvenile counsel models, a Juvenile Prosecution Service is not required since the charge before the juvenile court is represented by the juvenile counsel himself/herself.
Above all, in the practice of juvenile criminal law, it is the investigative authorities that are of particular relevance. Like the juvenile prosecution service or the court, the investigative authorities have (according to Art. 5 JCPC) to halt a criminal proceeding if the prerequisites for a dispensation of penalty set out in Art. 21 JCC (“Strafbefreiung”) are satisfied. This means that already in the pretrial phase the case can be diverted for reasons of expediency, if protection measures are not deemed to be necessary (or the civil law authorities have already ordered appropriate measures), and if the juvenile’s guilt and the damages are minor; or if there is another reason given such that the court proceedings appear disproportionate or even obsolete— such as if the juvenile has already made amends or has been sufficiently punished by his/her parents or by school authorities or if longer time has elapsed since the offense and the interest of the victim or the public in a prosecution is small.
Furthermore, according to Art. 5 paragraph lit. b, the investigative authorities, the Juvenile Prosecution Service, or the Court have to halt the ongoing criminal prosecution if a compromised settlement or mediation can be successfully concluded.
Because diversion data from the FSO has not been compiled, no dependable assessments regarding the use of diversion options in practice can be made. What can be calculated, however, is the extended use of summary proceedings in juvenile criminal law. Through this the investigative authorities have in fact become the most important decision-making unit in juvenile criminal affairs: in cases that do not fall under the jurisdiction of the juvenile court, they have the authority to waive a summary proceeding. The legal formulation alone shows that the summary proceedings should be the norm: according to Art. 34 JCPC the juvenile court becomes responsible only when criminal actions are disputed for which there is a placement (as a protection measure), a fine of over 1000 Swiss Francs (CHF), or imprisonment of more than 3 months is in question. Thereby all of the relevant alternative sanctions in juvenile proceedings, such as community service and reprimands, and all ambulant protective measures can be mandated by the investigative authorities per a summary proceeding. According to the analysis of Aebersold (2011), at least 98 % of judicial convictions are initially issued via summary proceedings. Only the very rare high penalties and placements must be mandated by the juvenile criminal courts. The youth courts are furthermore responsible in the equally rare cases in which an objection to the order of summary punishment is raised. A summary proceeding can be issued without an oral hearing and by its legal nature does not constitute a decision. Instead, to some extent it is viewed from the perspective of Swiss legal doctrine as a proposal for the settlement of a procedure (Aebersold 2011). The summary proceeding becomes a verdict if the accused juvenile or his/her legal representative does not raise an objection. If an objection is raised, then the summary proceeding is not applicable and a judicial action will ensue. In general, the summary proceeding is applied to offenses that are negligible or clearly proven (i.e., when the action has been admitted to) in order to provide relief for the courts and allow them to react appropriately to such offenses. In Swiss juvenile criminal law, the summary proceeding vis-a-vis adult criminal law has been expanded. This might be viewed as somewhat problematic inasmuch as an oral hearing in a summary proceeding is not compulsory and inasmuch as one might inquire whether it is reasonable in terms of educative measures to impose a sanction in a written proceeding (i.e., without direct communication with the juvenile) (Aebersold 2011). Juveniles very rarely raise objections against the summary proceeding.
With summary proceedings, the investigative authorities can determine the following protective measures or penalties: