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ALTERNATIVE SANCTIONS FOR JUVENILES

“Alternative sanctions” are understood as noncustodial sentences or measures that can be mandated in an order of summary punishment or in a verdict. In practice the imposition of noncustodial sentences is the rule. The prerequisite for every penalty is the proof of guilt. Relevant for the sentencing, however, is not just the question of guilt but, rather, the need to take educative and, particularly, special preventive considerations and different points of view into account. Both of these criteria can contradict each other. It is essential that the appropriate maximum sentence of guilt must not be exceeded (“Verschulden als Obergrenze”), though it certainly can fall below. In juvenile criminal law, sentencing is far more individualistic than in adult criminal law. According to the highest level of legal jurisprudence, the sentence must be adapted to the age and whole personality of the juvenile so that the sentence does not impede or harm the juvenile’s further development but, on the contrary, strives to positively influence it. In matters of educative concerns, the presumed effect of the penalty on the behavior of the juvenile plays a distinct role.

Dispensation of penalty (“Strafbefreiung”) is an alternative to sentencing which, if the prerequisites are given, must be adopted by the investigative authorities. The law stipulates six cases of dispensation. On the one hand, the cases reflect factors stipulated in adult criminal law; on the other, they pertain to factors specific to juvenile criminality: minor criminal offenses, compensation, personal impact stemming from the effects of the criminal act, punishment already handed out by the parents or school authorities, length of time since the crime, successful offender-victim reconciliation (mediation), or the success of a protective measure being put at risk through an additional sentence. Most of the time, such decisions fail to show up in the sentencing statistics because the case has been diverted at an earlier stage of the criminal procedure.

 
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