Chapters of the article
What is criminal liability
Criminal liability means that a person can be legally prosecuted and punished for committing a crime.
Someone who meets the legal conditions is criminally liable:
- Over 15 years of age: Criminal liability begins when the person reaches the age of 15. Persons under the age of 15 cannot be held criminally liable and their cases are dealt with in other ways.
- Sanity: The person must have the capacity to recognize the wrongfulness of his/her conduct and to control his/her behaviour. Insanity may be due to mental illness, mental retardation or a temporary condition such as severe intoxication.
- Culpability: the offender must have a subjective relationship to the consequences of his or her actions. Culpability may be intentional or negligent. Intentional means that the person directly intended to commit the act or was resigned to the consequences. Negligent means that the person causes the consequence through lack of care or diligence (conscious or unconscious).
Criminal liability of minors (15 years and over)
The criminal liability of juveniles, i.e. persons aged between 15 and 18, has specific rules that differ from those for adults. These special arrangements are aimed at educating and reforming rather than punishing them.
Offences committed by juveniles are referred to as misdemeanours and are not punished, but are called measures. The criminal liability of juveniles is then primarily regulated by the Juvenile Justice Act. Let us look at the specifics:
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Age and criminal liability
A person who has attained the age of 15 but has not attained the age of 18 is a juvenile. In addition to age, the juvenile’s intellectual and moral maturity shall also be taken into account. These concepts relate to the capacity of juveniles to understand the nature and consequences of their actions and to distinguish between right and wrong conduct. It is therefore clear that it will vary considerably from one accused juvenile to another and must therefore be assessed on an individual basis.
Deciding on moral and intellectual maturity can look like this:
martin, 16, committed vandalism by spraying various graffiti on the walls of the school along with several other juveniles. The incident was caught on a security camera and Martin was identified as one of the perpetrators.
Martin comes from a divorced family and spends most of his time with friends who have a negative influence on his behaviour. A psychological assessment showed that Martin has no intellectual disability but shows signs of immaturity in his decision making and social behaviour. Martin tends to be influenced by his peers and has a poor ability to resist group pressure. His behaviour is often impulsive and poorly thought out.
The Court thus ultimately concluded that Martin was not sufficiently mature in mind and morals to fully understand the consequences of his actions and to be held criminally responsible for them.
Special proceedings
Juveniles are tried by a specialised juvenile court , and the Social and Legal Protection of Children Authority(OSPOD) and the Probation and Mediation Service are always involved in the whole process.
Advocacy
The presence of a defence lawyer is required throughout the criminal proceedings, including at all stages of the trial.
Confidentiality
Information about juvenile offenders, including their names, photographs, addresses and other identifying information, is not publicly available. This anonymity is protected by law to minimize negative impacts on their future lives and social integration. Court hearings with juveniles are also generally not public.
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Detention can only be ordered if there are serious reasons for it (e.g. a high chance that the juvenile might abscond, influence witnesses or continue criminal activities).
The length of detention for juveniles is limited to a maximum of two months or six months in the case of serious offences. In exceptional cases, it may be extended, again by up to two or six months.
Penalties (measures)
As we have already announced, punishments for juveniles are called measures and there are three types of measures in total :
- Educational measures: educational measures are aimed at positively influencing the juvenile’s behaviour and his/her proper development. These include, for example, the supervision of a probation officer who supervises the juvenile’s behaviour, provides support and helps the juvenile to re-socialise; or educational restrictions to prevent the juvenile from behaving in an undesirable way (e.g. prohibiting him/her from visiting certain places and contact with certain persons).
- Protective measures: Protective measures aim to protect the juvenile from negative influences and ensure his/her proper development. They are chosen in particular in cases where the family of the juvenile is unable to provide the necessary education and support. Protective measures include, for example, protective education, where the juvenile is placed in a specialised institution.
- Punitive measures: Punitive measures are the most severe form of sanctions and include punishments designed to deter the juvenile from further criminal activity and at the same time to punish him/her for the offence committed. This includes, for example, suspended and unconditional prison sentences. However, juveniles always serve their prison sentences in facilities separate from adult prisoners.
Tip: Imprisonment is one of the most feared punishments. For what crimes can it be imposed, what exactly influences its amount and how is it carried out? Find out in our article.
Penalty rates
The imposition of an unconditional prison sentence is exceptional and the maximum sentence is half that of an adult (e.g. the maximum sentence for juveniles is 5 years, although for adults it would be 10 years).
Statute of limitations
Statutesof limitation are shorter than for adults and depend on the seriousness of the offence as follows:
- 10 years for exceptional sentences,
- 5 years for prison sentences of more than 10 years,
- 3 years for other offences.
Criminal liability of children (up to 15 years)
Children under the age of 15 are not criminally liable. This means that if a child under 15 commits an act that would normally be considered criminal, he or she cannot be prosecuted and punished. This is called an act otherwise punishable. When a child commits an otherwise criminal act, it does not mean that he or she gets off scot-free, but there are specific procedures.
A child who has committed an otherwise criminal act is not subject to a traditional criminal prosecution but to special court proceedings. The child is also appointed aguardian who is also a lawyer. The court can then decide on measures to correct the child. These include:
- Educational obligation: the child is obliged to fulfil certain obligations that are set by the court. These obligations may include participating in specific educational activities, providing for restitution, etc.
- Educational restrictions: the court may impose certain restrictions on the child, such as prohibiting him/her from visiting certain places or from contacting specific persons who have a negative influence on the child.
- Reprimand with warning: The child is formally admonished by the court and is also given a warning that further offences will lead to more severe measures.
- Placement in a therapeutic, psychological or other appropriate educational programme in an educational care centre: The child is placed in a specialised programme aimed at addressing his/her specific problems, whether therapeutic, psychological or other educational programmes.
- Supervision by a probation officer: The child is supervised by a probation officer who monitors the child’s behaviour and provides support and guidance to prevent further offending.
- Protective Education: The child is placed in a protective education facility where he/she receives intensive educational and social care. This option is used for particularly serious offences or where other forms of rehabilitation have failed.
- Protective treatment: The child may also be ordered to receive protective treatment, which includes, for example, treatment for addictions or special treatment for mental illness.
Summary
Criminal responsibility begins at age 15, and younger persons cannot be prosecuted. For juveniles between the ages of 15 and 18, there is special legislation that emphasises education and re-socialisation rather than punishment. Juveniles also have specialised courts, the mandatory presence of a defence lawyer, identity protection and specific measures instead of traditional punishments. Children under the age of 15 are not criminally responsible and their illegal acts are dealt with through educational and protective measures. These measures include educational obligations, restrictions, reprimands, placement in special programs, supervision by a probation officer, protective education and protective treatment.