administrative organizational measures, which are sometimes difficult to put in place as quickly as needed.
The use of bail to avoid pre-trial detention is rare in the case of young offenders in Germany. The young perpetrator is usually not in an economically independent position, which means that his or her parents would post bail, thereby undermining the aim of bail. If detained, young offenders are to be placed in a special detention home for juveniles or in the juvenile wing of the detention prison.848 Pre-trial detention must be organized in such a way as to favour education, with the consequence that a young offender placed in pre-trial detention is obliged to work. The length of pre-trial detention is strictly regulated.849 According to §72 V JGG, proceedings against a young perpetrator who has been detained prior to trial must be carried out with “extraordinary speed”. But theoretically it is possible for a juvenile to spend up to six months (or even more) in confinement awaiting trial. The final sentence is normally reduced by the time served before trial.850
In Sweden, the police must proceed with caution when considering taking a young offender into custody. Even if the law does not draw a specific line (as is the case with pre-trial detention, which always demands extraordinary grounds), in practice the demand for extraordinary grounds – a precondition I will come back to shortly – applies even when taking a young offender into custody.851
848 The division of young offenders and adults in prison is also required by the UNCRC, article 37c: “Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances”. It is also reflected on a European level in Rec(2008)11, Part III; see https://wcd.coe.int/ViewDoc.jsp?id=1367113 (last visited 2017-01-20).
849 According to §121 I StPO, pre-trial detention may exceed six months only if there are extraordinary grounds. Continued pre-trial detention is to be reviewed by the Higher Regional Court (Oberlandesgericht) according to §122 StPO.
850 See §52a JGG.
851 See RättsPM 2013:7, section 24. Note, though, as indicated in section 4.1.2.5., that the term
“extraordinary” is not further defined in the preparatory works. For an example in which the HD denied that there were extraordinary reasons, see NJA 1978, 471; also NJA 2008, 81, in which the sufficient surveillance afforded by juvenile care according to LVU made pre-trial detention redundant.
The police may hold a person for questioning for up to six hours852 and has to inform the public prosecutor as soon as possible.853 After that, the officer in charge may hold the suspect for another six hours, but must reveal that the person in custody is being treated as a suspect and has the right to legal counsel.
According to the guidelines for public prosecutors issued by the Development Centre854 Stockholm concerning the application of the UNCRC in relation to young offenders, the public prosecutor should apply at the court for legal counsel, paid by public funds, for the young offender as early as possible.855 The legal counsel should attend the first interrogation of the suspect.856 If the suspect is a juvenile, the parents or the legal guardian have to be informed immediately unless this would harm the investigation.857 If the offence could lead to a prison sentence, social services also have to be informed immediately.858 If the offence is so serious that the expected sanction would result in imprisonment for more than a year and the certainty that the suspect will be found guilty by a court of law has reached a certain level,859 the public prosecutor may obtain a court order for the suspect’s detention within four days from the time the suspect was arrested.860 The court order should be issued in a pre-detention trial. If it is issued, the court also decides on a timeframe within which the public prosecutor has to file the indictment.861 If this time exceeds two weeks, the court must hold
852 See chapter 23 §9 RB.
853 See Justitieombudsman (JO) decision of 9 April 2010 and JO’s decision of 5 April 2016. An
“ombudsman” is an institution, which describes a public representative who has the right to investigate and review other public institutions, especially the administration, perhaps because of a complaint from a citizen; see Kischel (2015), 610–11. This institution – at least in relation to the justice ombudsman – is mentioned in chapter 13 §6 of the Swedish constitution RF.
854 My translation of “Utvecklingscentrum”.
855 See also section 6.5., describing the recent development in the Swedish juvenile criminal justice system to strengthen the rights to legal counsel for young offenders.
856 See RättsPM 2013:7, section 4.
857 See §5 LUL.
858 See §6 LUL.
859 For adult (and even young adult) offenders this threshold is placed at the level of special reasons (my translation of “särskilda skäl”), while there have to be extraordinary reasons (my translation of
“synnerliga skäl”) for a juvenile offender, which means that there have to be specifically strong indications that the person held in custody is guilty of having committed a serious crime.
860 See chapter 24 §13 RB.
861 See chapter 24 §18 RB.
a new pre-detention trial every second week.862 The Swedish legal system does not have the concept of bail; economic means are not to make any difference to the law.863
The general preconditions for pre-trial detention in Sweden are basically the same as in Germany: the suspect is likely to flee; the suspect intends to destroy evidence, intimidate witnesses, or impede the investigation in another way; or the suspect is likely to continue with criminal conduct.864 The additional reason for pre-trial detention in the German system – that the suspect is strongly suspected of a serious crime – is not precisely mirrored in Swedish law.
However, if the offence committed could lead to a prison sentence of two years or more, the suspect should be placed in pre-trial detention unless it is clear that there is no reason for detention.865 That said, this rule applies primarily to adult suspects. For a young offender, the public prosecutor has relatively broad discretion for avoiding pre-trial detention even if the offence committed would satisfy the aforementioned conditions.866 According to chapter 24 §1 3rd break RB, pre-trial detention may only be imposed if it is proportionate. For young offenders, this rule is tightened further in chapter 24 §4 1st break RB, which stipulates that if there is a danger that pre-trial detention could cause serious harm, for example because of the offender’s age, it may only be imposed if it is obvious that safe supervision cannot be put in place in another way. Persons under the age of 18 are considered as being in danger of serious harm when placed in pre-trial detention.867 This legislation builds on the assumption that the ends served by pre-trial detention can also be achieved by social services,868 although it acknowledges that avoiding pre-trial detention in favour of supervision may be a less viable option in cases in which there is a risk that
862 See chapter 24 §18 3rd break RB.
863 See Janson (2004), 417.
864 See chapter 24 §1 RB.
865 See chapter 24 §1 2nd break RB.
866 See RåR 2006:3, 41.
867 See prop.1964:10, 163. See also Brå Promemoria 2015, 7, 12–13.
868 See Justitieombudsman (JO) 1994/95, 255; JO 2009/10, 252 (for the specific institution of the
“ombudsman”, see what was said in footnote 853); and also Nordlöf (2012), 339. For a critical assessment of such an alternative placement, see Tove Pettersson, “När hjälpen gör ont värre – om (oönskade?) konsekvenser av att undvika häkte för unga lagöverträdare,” in Tvångsvård av barn och unga, 279–95 (Stockholm: Wolters Kluwer, 2017).
witnesses might be intimidated or evidence destroyed.869 Furthermore, §23 LUL demands “extraordinary” reasons to place a juvenile in pre-trial detention, making pre-trial detention for juveniles the exception rather than the rule. In relation to the question of whether such “extraordinary” reasons exist, the court has to place specific weight on the age of the offender and the seriousness of the offence. The weight of the different reasons for detention matters.870
Sweden was heavily criticized for its rules – or rather its lack of rules – regarding pre-trial detention for young offenders and its application of this measure.871 One reason for these criticisms was that young perpetrators in pre-trial detention often end up in some form of isolation because of the extensive use of restrictions.872 This is linked to the fact that pre-trial detention is often imposed on young offenders in cases in which there is a risk that witnesses might be intimidated or evidence destroyed, which then leads to the imposition of restrictions.873 Furthermore, we should mention in this context the problem of overly long pre-trial detention874 – which relates to the principle of acceleration I engage with shortly875 – and the lack of routine for juvenile offenders.876
869 See prosecutors’ guidelines RåR 2006:3, 21ff.
870 See NJA 2015, 649.
871 See RättsPM (2013), “Unga lagöverträdare och barnkonventionen”. Sweden was also criticized for its rules regarding pre-trial detention for adult offenders and its application of this measure.
872 See the report of the Barnombudsman (2013), “Från insidian” (for the specific institution of the “ombudsman”, see what was said in footnote 853). See also the report of the Public Prosecutor’s Office “Häktningstider och restriktioner” (2014), 82–6 and the findings of Brå Promemoria 2015, 4. Recently, Brå has confirmed again that, in spite of these criticisms, the use of restrictions has not declined; see http://www.bra.se/bra/nytt-fran-bra/arkiv/press/2017-01-25-manga-haktade-i-sverige-halls-isolerade.html (last visited 2017-02-07). See also Brå Report 2017:6, which emphasizes the particularly harmful effect on young offenders due to their level of development as compared with adult offenders (55, 66–7).
873 See http://www.bra.se/bra/nytt-fran-bra/arkiv/press/2017-01-25-manga-haktade-i-sverige-halls-isolerade.html (last visited 2017-01-31), which points out that in 2015, 81 per cent of the 140 young detainees in Sweden were held under isolating restrictions. See also Brå Report 2017:6, 35.
874 See Brå Promemoria 2015, 7. Such overly long pre-trial detention is to be taken into account as a mitigating circumstance according to chapter 29 §5 BrB; see NJA 2015, 769.
875 See section 5.3.
876 See the UN’s criticisms (UN Subcommittee on Prevention of Torture and other Cruel, Inhuman reports of Sweden”), CAT/C/SWE/6-7, 2014, 4 no.9.
Analysis from a welfare/justice perspective
In both countries, the use of pre-trial detention for young offenders is subject to restrictions. The underlying reason for the higher threshold for using pre-trial detention in the case of young perpetrators is the fact that they are considered more vulnerable to the negative effects of detention.877 This is the sharpest tool the criminal law has for responding immediately to an offence, and in both countries the rules governing its use are heavily influenced by safeguards in line with the rule of law (for example the principle of proportionality), which reflects justice considerations. The rules in these countries are more or less the same, except for the fact that the German system features a semi-absolute maximum threshold of 6 months, which can only be extended in exceptional circumstances, and that Sweden makes more extensive use of restrictions in connection with pre-trial detention. However, since both countries acknowledge the harmful environment of pre-trial detention for young offenders because of their greater vulnerability, juveniles under the age of 18 may only be placed in pre-trial detention under very specific circumstances. This is an expression of the balancing of welfare considerations with the interests of the society and justice in guaranteeing a criminal trial. It thus exemplifies the welfare/justice clash.
An example of this balance in the German juvenile criminal justice system is §72 JGG, which stipulates that pre-trial detention should be avoided by placing young perpetrators in closed homes under the supervision of social services. The law clearly indicates that this option has to be chosen over pre-trial detention, which can be interpreted as prioritizing the welfare consideration of avoiding the harmful environment of imprisonment. This welfare consideration is further enhanced by §72 V JGG, which specifically emphasizes that proceedings against a young perpetrator who has been detained prior to trial must be carried out with “extraordinary speed”. As described above, this rule rests upon an acknowledgement of young offenders’ greater vulnerability to the negative effects of incarceration. This welfare consideration has to be balanced with the society’s need to guarantee a trial and to be protected as justice considerations.
In the Swedish juvenile criminal justice system, an underlying aim of the rule that social services must be informed as early as possible is to enable them to find alternative solutions to pre-trial detention – since juveniles are to be kept out of prison if possible. Chapter 24 §4 1st break RB and §24 LUL stipulate a
877 See section 2.3.2. See also United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havanna Rules) I No.3.
higher threshold for placing young offenders in pre-trial detention, which can be interpreted as an expression of the acknowledgement of the harmful environment of detention and young persons’ greater vulnerability to the effects of this environment, and so as a manifestation of welfare considerations. The importance placed on these considerations here restricts the principle of proportionality (a justice consideration). However, the very existence of the possibility of placing young offenders in pre-trial detention reflects justice considerations, namely the interests of society and justice in guaranteeing a criminal trial.
As I mentioned above, Sweden was criticized by the UN for their rules and their application concerning pre-trial detention, especially in relation to isolation.
Consequently, Sweden is currently looking again at the rules for pre-trial detention. There is a movement towards considering alternatives to pre-trial detention for juveniles;878 this can also be interpreted as an attempt to strike a better balance between welfare and justice considerations, and so as an acknowledgement of the welfare/justice clash.