Is juvenile justice unconstitutional?

Juvenile justice: JGG-AmendmentG 2015 - RV

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Federal law with which the Youth Courts Act 1988, the Criminal Code and the Probation Assistance Act are to be amended, and with which a federal law for the eradication of convictions according to Sections 129 I, 129 I lit b, 500 or 500a of the 1945 Criminal Code and Sections 209 or 210 of the Criminal Code is enacted should be (JGG-AmendmentG 2015)

RV 10. 10. 2015, 852 BlgNR 25th GP

Legislation remains to be seen.

The amendment includes the following measures in particular:

Creation of a legal basis

Young adults

-Inclusion of young adults in the title of the law:
The young adults should be mentioned in the title of the law ("Federal Law ... on the administration of justice in the case of criminal offenses by young people and young adults (Youth Courts Act 1988 - JGG)") in order to express that the regulations for young adults have been expanded in terms of content and that up to now partly in the StGB, some of the provisions contained in the JGG are fully incorporated into the JGG.
-Conceptual definition of young adults:
Inclusion of the definition “Young adult: who that 18., but not yet reached the age of 21 has "(§ 1 Z 5 JGG).

Juvenile court assistance

The juvenile court assistance supports the public prosecutor's offices and courts in fulfilling their tasks; the 6 different tasks of the youth court assistance (§ 48 Z 1 to 5 and § 49 Abs 1 JGG) should basically not change. In the course of the nationwide However, the legal basis for juvenile justice should be expanded adapted, to the corresponding regulations of the already existing Family court assistance in the Non-dispute law (§§ 106a, 106c AusstrG) can be adapted and structured more clearly.

The existing provisions on youth court assistance in Vienna (in the current section 49 (1) sentences 1 and 3 JGG) are essentially retained (section 49 (1) JGG), while for the others Federal states the Federal Ministry of Justice - as in § 106c Abs 1 AusStrG - the Authorization to issue ordinances receives for the order for which courts a juvenile court assistance is set up (§ 49 Abs 2 JGG).

The introduction of youth court assistance nationwide is intended to enable the public prosecutor's offices and courts to be consistently involved in criminal proceedings against young people and young adults Detention decision aid to get and Youth surveys to be able to commission (cf. § 43 JGG: survey of the living and family circumstances of the accused, his development and all other circumstances that can serve to assess his physical, mental and emotional characteristics). According to the will of the legislature, youth surveys are now to be carried out increased can be obtained - except, as before, in those cases in which obtaining it, taking into account the nature of the act, makes it appear unnecessary to go into more detail about the personality of the accused.

Of the planned changes, it should be emphasized that the new regulation of the powers of the juvenile court assistance organs (Section 50 (1) JGG) is largely based on Section 106a (2) AusStrG: According to this, the youth court assistance should now also be entitled to "people who have the circumstances a young person could provide information, too load and to question, as well immediate contact to establish with the youngster. Persons in whose care the young person is obliged to tolerate such contact. Against persons who violate their duty to participate in surveys of the youth court assistance, the court can forced demonstration or other appropriate coercive force and Diffractive (§§ 93f StPO) order. "

Social networking conferences

The social network conference is a new methodological approach to social work that goes back to the model of the "Family Group Conference" (FGC), which was initially developed in New Zealand. The model assumes that young people who are in a critical phase of life (which is manifested in particular by committing criminal offenses) are themselves competent in making decisions and solving problems. The aim of the social network conference is to involve the young people's social environment (parents, other family members, friends, neighbors, teachers, etc.) in overcoming their crisis and dealing with their conflicts, and to support them in preventing (or no longer) committing criminal offenses in the future. To this end, the young people are supported by their social environment in drawing up a binding future plan and adhering to it.

On behalf of the BMJ, the Neustart association carried out a project limited to two years and - originally - offered three types of social network conferences, two of which - the Pre-trial detention conference and the Discharge conference - were brought into regular operation nationwide from November 1, 2014 (decree of the Federal Ministry of Justice of October 6, 2014, BMJ-S618.019 / 0001-IV 2/2014, eJABl No. 7/2014). The proposed regulations are intended to create the legal basis for this, namely in BewHG (§ 29e BewHG) as well as in JGG (§ 17a and § 35a JGG) following the special rules for arrest and pre-trial detention or conditional release from a custodial sentence.

For one Pre-trial detention conference (Section 35a JGG), young people and adults who are suspected of a juvenile crime and who have been sentenced to pre-trial detention come into consideration. The juvenile court assistance has already been entrusted with the respective cases by the detention decision assistance and should present its opinion on the meaningfulness and suitability of the respective individual case for holding a pre-trial detention conference. The purpose of this conference is to create an appropriate basis for decision-making and to work actively to ensure that pre-trial detention can be lifted in favor of the use of milder means (Section 173 (5) of the Code of Criminal Procedure).

Target group one Discharge conference (§ 17a JGG) are convicted of a juvenile offense who are in custody. The aim of this conference is to create the basis for a release from prison according to § 46 StGB and § 17 JGG. Beyond the time of release from prison, the release conference is intended to make a significant contribution to ensuring that the convicted person does not commit any new offenses. The entrustment of the Neustart association with the organization of a discharge conference takes place in the context of the preparation of the conditional discharge (§§ 144, 145 Abs 2 StVG) by the prison manager. In relevant cases, the prison directors should initiate a release conference in good time (Section 145 (1) and (2) StVG) so that release is possible after half of the prison sentence has been served, but at the latest after two thirds. The public prosecutor's office is also at liberty to apply for a dismissal conference because they can also apply for conditional dismissal (Section 152 (1) of the StVG).

Range of sanctions affecting young adults

-Priority of special prevention:
With the reference to § 5 no.1 JGG in § 19 paragraph 2 JGG, the priority application of special prevention and the heavily suppressed application of general prevention should also be provided for young adults.
-Diversion:
With the reference to Sections 7 and 8 JGG in Section 19 (2) JGG, a diverse approach within the meaning of special provisions for young people should also be possible for young adults in the future. This is intended to give the public prosecutor's offices and courts the opportunity to react even better to the peculiarities specific to juvenile criminal proceedings.

In the individual areas of application, for example in proceedings based on Section 232 (1) StGB, the introduction of an indictment and the associated resource-demanding hearing before a lay judge will no longer be mandatory. In cases where young adults merely color-copy banknotes, for example, this is the previous approach and in individual cases not only represents an exaggerated reaction to behavior of juvenile folly, but it can also be reacted to in a more diverse way - because it is tailored to the individual accused.

-Approximation of the penalty limits:
Section 19 (1) of the JGG is to replace Section 36 of the Criminal Code in the future with the penalty framework for criminal offenses young adult rule: Against a person who has not yet reached the age of 21 at the time of the act, may up no stricter as a prison sentence of 15 years are recognized, and the minimum of all threatened temporary imprisonment is based on that for juveniles (§ 5 Z 2 lit a, 3 and 4 JGG). With the equalization of the lower penalty limits, the independent courts should be given greater leeway in the future in order to be able to better respond to the personality structure of the individual perpetrator.
-Hardship clause for property dispositions:
In criminal proceedings against adolescents and young adults, a hardship clause is to be introduced (again) for dispositions relating to property (§ 5 7 6a JGG): vom Decay of assets, uses or substitute values ​​should be wholly or partially apart if they can be the condemned unreasonably hard should meet.

Procedure, detention, etc.

-Jury for 14 to 16 year olds:
The proposed regulation (restriction in § 27 Paragraph 1 Z 2 JGG to the cases of § 5 Z 2 lit a JGG) is intended to restore the situation that was in force before the Budget Accompanying Act 2009, that a jury who was not yet 16 at the time of the offense would not have jurisdiction consists.
-Omission the Custody for cases where that District Court would be responsible (such as property damage, bodily harm or theft).
-Reinforcement of the exceptional character of pre-trial detention:
In the future, pre-trial detention for young people will only be imposed in exceptional cases, if more lenient means are not sufficient. The court and public prosecutor's office must also expressly justify such a decision.
Section 35 (3a) JGG is intended to ensure that the decision on a custodial measure for young people is made at regular intervals also after bringing in the accusation From the court checked becomes.
Since under the existing system in proceedings in which several suspects were arrested at different times, different periods of detention can run, the time limit system at the stage of the main proceedings, from the legal validity of Indictment or arrangement of Main hearing before the regional court as a single judge to run again start. By setting a one-month period and then a two-month period, the regular ex officio examination of the need to continue pre-trial detention is achieved, but at the same time an excessive burden on the courts in main proceedings is avoided (because a detention hearing is not necessary in those cases, in which the detention can be decided in due time in the main hearing).
It is also stated in the materials that outside the main hearing in the case of the jurisdiction of the Jury or jury court according to § 32 Abs 3 StPO der Chairperson has to decide. If pre-trial detention is applied for or imposed after or with the introduction of the indictment, the detention period of 14 days applies; With the legal validity of the indictment or the order of the main hearing by the court in the proceedings before the regional court as a single judge, a period of one month is triggered. A complaint against the imposition of pre-trial detention, just as an objection to the indictment, should not trigger a new deadline, so the first court will regularly have to conduct a custody hearing in these cases before submitting an objection to the OLG.
-For young adults the provisions on the exclusion of conditionally compulsory arrest or remand detention should also be made applicable.
-Extension of the suspension of sentences for training purposes:
The proposed change is intended to expand the possibility of extending the postponement of the sentence for training purposes, as this is no longer permissible only for a prison sentence of up to one year (Section 6 (2) 1 of the StVG), but for a Imprisonment of up to 3 years (§ 52 JGG).
-Expansion of the cost of assisted living:
Up to now, only federal costs for withdrawal, psychotherapeutic or medical treatment were provided for in § 46 JGG. So as Alternative to pre-trial detention the instruction to take up residence in a assisted living facility does not fail due to the question of costs (young people could not pay this), § 46 JGG should be amended accordingly.

miscellaneous

-ECHR-compliant deletion of convictions from the criminal record:
With the knowledge of VfGH June 21, 2002, G 6/02, was Section 209 of the Criminal Code as amended by Federal Law Gazette 1988/599 ("Same-sex fornication with persons under the age of eighteen") with effect from August 14, 2002 as unconstitutional canceled. Since convictions according to § 209 StGB old version continue to appear in the criminal record despite its repeal, the ECHR a violation of Art 14 in conjunction with Art 8 and 13 ECHR (ECHR November 7, 2013, 31913/07 et al., LN Rechtsnews 16515 of January 7, 2014).
With the present draft this decision is to be followed and by a separate federal law the Repayment of convictions according to §§ 209 or 210 StGB as well as their predecessor provisions §§ 129 I, 129 I lit b, 500 or 500a of the 1945 Criminal Law (StG) Request the convicted person, a relative (Section 72 StGB) or the public prosecutor's office Court order be made possible.
-Legal adjustments and conceptual adjustments:
Furthermore, the JGG is to be adapted to modern terminology (e.g. use of the terminology “child and youth welfare organizations”).

Come into effect

The dates of entry into force are January 1, 2016 and the day after the announcement in the Federal Law Gazette.

Legal news No. 20531 from November 5th, 2015