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The general rules in the German criminal justice system for a dismissal, an exception from the principle of legality,682 are stipulated in §§153–154e StPO, and their scope is significantly broadened in relation to young offenders through the possibility of diversion, stipulated in §§45 I–III JGG. The dismissal of a case covers all cases where the public prosecutor does not find it necessary to prosecute the case before a court of law. Dismissal refers to cases in which there is insufficient evidence or the offender cannot be identified, etc., but also to cases in which the offender is deemed guilty but the offence requires no formal trial. For young offenders, this last alternative goes under the heading of

“diversion”. It is a subcategory of dismissal and constitutes the major difference between the rules for a dismissal applicable to young offenders and those applicable to adult offenders. The word “diversion” itself stems from the Latin

“divertere”, which means “to steer sideways”.683 This category is based on the principle of opportunity.684 It is a form of official response that is an alternative to a formal criminal trial and which can avoid the disadvantages of a criminal trial – like, for example, stigmatization – but still have a cautionary effect in relation to the socialization of a young person.685

In the German juvenile criminal justice system, the most frequent response to minor offences is the dismissal of the case in the form of diversion by the juvenile public prosecutor and the juvenile court.686 This response is justified by

682 §§152 II, 163 StPO in conjunction with §2 JGG. On the principle of legality, see section 6.3.

683 See for example Ostendorf (2015), 92.

684 Regarding the principle of opportunity as opposed to the principle of legality, see also section 6.3.

685 See Schaffstein, Beulke, and Swoboda (2014), 261.

686 For a statistical overview, see (for the year 2012) https://www.destatis.de/DE/-Publikationen/Thematisch/Rechtspflege/GerichtePersonal/Staatsanwaltschaften2100260127004.p df?__blob=publicationFile, 11, 26; Schaffstein, Beulke, and Swoboda (2014), 263; or Albrecht (2002), 197. This is also in line with 1990’s UN guidelines for the Prevention of Juvenile

the normality, ubiquity,687 and the episodic character of juvenile delinquency.688 Because of the abuse of police power that occurred under the Nazi regime, the police have no discretionary power whatsoever to dismiss criminal cases but are strictly bound to the principle of legality, which means that they must refer every suspect to the public prosecutor’s office. Nevertheless, the police may initiate the conditions required to divert a case.

The JGG stipulates four levels of diversion, which may take an unconditional or a conditional form. A confession from the young offender is not necessarily a precondition for a dismissal. The failure to satisfy the conditions imposed as part of a divertive measure may lead to a trial, which means that a conditional diversion may be compared to a suspended sentence. The four levels of diversion the JGG offers, in order of increasing intensity of interference, are:

• §45 I JGG: Dismissal without any consequence in the case of minor offences with minor guilt and no public interest in prosecution. It is applied when the juvenile public prosecutor does not see any further educative need apart from the discovery of the offence and the investigative procedure.689 The consent of the juvenile judge is not a necessary precondition.

• §45 II JGG: Dismissal with educative measures taken by other actors (for example, the parents, the school,690 or measures initiated by the public prosecutor691) or in combination with mediation if the juvenile public prosecutor does not deem it necessary to involve the juvenile judge.

• §45 III JGG: Dismissal with the intervention of the juvenile judge. This means that the public prosecutor proposes that the juvenile judge imposes a minor legal consequence (such as a warning, community service for juveniles, mediation, participation in a training course for

Delinquency (the Riyadh guidelines), which state that youth justice policy should avoid criminalizing children for minor misdemeanours.

687 See Laubenthal, Baier, and Nestler (2010), 2ff.

688 See Albrecht (2000), 21.

689 See guideline No.2 for §45 JGG.

690 See guideline No.3 s.2 for §45 JGG.

691 However, how far this competence goes is a disputed matter; see Eisenberg (2016), §45 margin no.21 and Schaffstein, Beulke, and Swoboda (2014), 268–9.

traffic offenders, an apology to the victim, a fine), but here the confession of the young offender is a precondition and the legal guardian has to consent.692 In this case, the formal criminal trial is replaced by an informal magisterial educative process, which often takes place in the chambers of the juvenile judge. Once the young offender has fulfilled the imposed obligations, the prosecutor will dismiss the case in cooperation with the judge. Note here that the imposed legal consequences are the same as those in educational or correctional measures. The difference lies in the fact that one is imposed through a formal sentence and the other is imposed in the form of a divertive decision.

• §47 JGG: If the charge has been filed but the young offender has undergone some educational measures before the proceedings and therefore a formal trial seems unnecessary, or if it becomes evident during the trial that no formal verdict is necessary, this section introduces the same options of dismissal for the juvenile court as §45 I–

III JGG with the consent of the public prosecutor.

These broad options for diversion are what is responsible for the fact that the vast majority of cases against young offenders are closed without a verdict:

between 68 and 70 per cent.693

In Sweden, the police are not as strictly bound to the principle of legality as in Germany (see, for example, chapter 48 §1 RB, which empowers the police to impose a so-called “ordningsbot”, a fine). Although §9 polislagen (1985:387) confirms in the first section the principle of legality, section two stipulates the possibility of a “rapporteftergift”.694 The latter states that the police may use their discretion to decline to file a report if the offence can be considered trivial and if it is obvious that a possible legal consequence would not exceed a fine.

Further, §13 LUL allows the police to direct juveniles aged 15 to 17 to repair the damage caused by their offences as soon as possible if the young offender confesses or if the perpetration is obvious. If a minor offence is observed, the police may react on the spot since they are usually the first contact the young

692 See Schaffstein, Beulke, and Swoboda (2014), 128.

693 See Heinz (2012), 126. According to the prevailing opinions, the specific forms for dismissing a case according to §§45, 47 JGG do not exclude the possibility of dismissing a case according to

§§153, 153a, 154 StPO and §31a BtMG; see Eisenberg (2016), §45 margin no.9ff.

694 “Relief to report” – my translation.

offender has at the place of the offence.695 They can thereby create the preconditions to allow for a dismissal by the public prosecutor, although a dismissal is not automatic.696

The Swedish juvenile public prosecutor may also dismiss a case on certain grounds that are only applicable to young offenders. In the case of adult offenders, the only options for dismissing a case can be found in chapter 20 §7 RB, which can also be applied to young offenders. The additional rules applicable to young offenders are stipulated in §§16–22 LUL.697 There are basically two additional grounds for young offenders: first, minor offences can be dismissed if they were committed because of “juvenile thoughtlessness” or precipitately.698 This basically means that the young perpetrator is a first-time offender who has confessed.699 Second, the case may be dismissed if appropriate measures are taken by social services or others to help and support the young offender.700 Appropriate measures in this sense include parental action, supervision, victim–offender mediation,701 or social care. An additional precondition is that no essential public or individual interest would be thereby disregarded. This condition implies, for example, considering the severity and character of the offence, taking into account the aim of maintaining law-abiding behaviour in general, and sustaining society’s trust in the objectivity of the judiciary.702

695 See prop.1987/88:135, 26.

696 See prop.1987/88:135, 28.

697 After first being subsidiary to chapter 20 §7 RB, §17 LUL is now lex specialis; see prop.1987/88:135, 11, 17–18.

698 See §17 LUL – my translation of “okynne eller förhastande”.

699 The liberal non-prosecution policy, which was adopted in the 1970s and 1980s, was in 1994 restricted to first-time offenders; see Lappi-Seppälä (2011), 226.

700 §17 No.1–3 LUL.

701 For an in-depth study of mediation in relation to young offenders in Sweden, see Linda Marklund, Ett brott – två processer. Medling vid brott och unga lagöverträdare i straffprocessen (Uppsala: Uppsala universitetstryckeri, 2011).

702 See prop.2014/15:25, 50ff. See also the prosecutor’s guidelines, RåR 2006:3, 4ff and especially 9–11, which catalogue the offences for which a dismissal based on juvenile thoughtlessness or precipitateness might be appropriate.

When the public prosecutor decides to dismiss a case, the young offender is summoned to his or her office and the decision is delivered like a verdict.703 Here, the preparatory works emphasize that the meeting should amount to a

“serious warning from society”.704 According to §22 LUL, the decision is linked to the requirement that the young offender behave in an orderly and law-abiding way in the future; otherwise, the decision can be revoked. In other words, if the young offender does not comply with the juvenile contract or the care plan, the juvenile public prosecutor will repeal the dismissal and prosecute.

This dismissal decision is delivered personally and formally to the young offender in the office of the public prosecutor, according to §18 LUL. §19 LUL states that at a meeting in accordance with §18 LUL, the public prosecutor shall specifically explain the meaning of the decision to dismiss the case and the requirement which this decision entails – namely, to behave – and to clarify what the consequences of further violations of the law might be.705

It should be noted that an amendment to the LUL, which came into force on 1 July 2015, has changed the wording from “åtalsunderlåtelse” to

“straffvarning”.706 The underlying reason is the normative function of criminalization and the importance of sending a clear signal to the young offender that this is a penal response.707

In Sweden, the procedural framework does not provide for the possibility of diverting a case in court. In court, the only alternative to a verdict being reached is that the public prosecutor decides to drop the case.

Analysis from a welfare/justice perspective

When it comes to the dismissal of a case, there are some differences between the Swedish and the German juvenile criminal justice systems. In Germany, the police have to transfer every case to the public prosecutor. The vast majority of

703 §18 LUL.

704 See prop.1994/95:12, 80.

705 If the young perpetrator reoffends within six months, such a dismissal can be revoked; see prop 2014/15:25, 51.

706 See prop.2014/15:25, 49, 50. My translation of “åtalsunderlåtelse” is diversion, and my translation of “straffvarning” is penalty warning.

707 See prop.2014/15:25, 50.

cases in Germany are dismissed or diverted by the juvenile public prosecutor and therefore never reach the courtroom. This may also be due to the fact that there are several ways in which the public prosecutor in Germany can dismiss/divert a case. In relation to the aim of diversion – avoiding stigmatization but still having a cautionary effect – we find a clear indication of the welfare/justice clash. The scope for dismissal is widened for young offenders because of welfare considerations (the aim of avoiding stigmatization, which stems from developmental psychology and criminological findings and thus the realm of the social sciences), but dismissal still serves as a warning – an expression of the importance of considerations of justice. Regarding dismissal according to §45 III JGG, the procedural form makes all the difference while the content often stays the same irrespective of whether the young offender receives a verdict or a dismissal. This form of dismissal reflects how close diversion and a formal verdict are to one another. Furthermore, the clear emphasis on an educative process is evidence of the strong influence of welfare considerations in this realm of justice – another indication of the welfare/justice clash.

A major advantage of these divertive measures is not only that they are less stigmatizing than other measures but also that they enable a faster response to the offence.708 However, it should not be overlooked that the control and safeguards are considerably smaller in comparison to the strictly formalized criminal trial, which may raise issues from the perspective of the rule of law.

Another problem may be that minor offences are “sanctioned” with legal consequences like community service for juveniles in the name of education, which might lead to an extension of the state’s social control.709 As a justice consideration, the principle of proportionality is relevant to whether a young offender’s case can be diverted or should be brought to trial. Consequently, the whole German system of diversion again comes down to a delicate balance of welfare and justice considerations, and so it is a clear representation of the welfare/justice clash. The various ways of dismissing a case against a young offender – the broad “diversion staircase”, as it is known – reflects the guiding principle of the German juvenile criminal justice system,710 placing emphasis on welfare rather than on justice considerations, though not abandoning the latter

708 In relation to “how time matters”, see section 5.3.

709 Wolfgang Heinz, “Zahlt sich Milde aus? Diversion und ihre Bedeutung für die Sanktionspraxis,” (Zeitschrift für Jugendkriminalrecht und Jugendhilfe (ZJJ) 2005, Vol.2: 166–78) calls this problem the “widening of the net effect” (173).

710 See section 3.2.

completely. Given the system’s educative guiding principle, and given the acknowledgement of the potentially harmful environment of a trial for a young person, it is not surprising that the legislature ensured that the young offender can be subject to several forms of dismissal before he or she enters a courtroom for the first time (and courts have made good use of this possibility). On the other hand, it cannot be denied that both the public prosecutor and the juvenile court are in a position to exercise a certain degree of coercion, since the case can still be brought to trial if, for example, the young offender does not comply with the imposed measures. Here, justice considerations become important.

However, the wide variety of options for dismissing a case explain the statistics relating to the German juvenile justice system.

In both Sweden and Germany, the assessment of whether a case can be dismissed involves taking into account the severity and character of the offence and the aims of maintaining law-abiding behaviour in general and society’s trust in the objectivity of the judiciary, all of which are expressions of justice considerations. On the other hand, the very fact that there are broadened possibilities for dismissing a case because of the young offender’s immaturity and vulnerability or because of some form of educational intervention reflects the importance given to welfare considerations. Both systems acknowledge the harm that may be caused by a formal trial against a young offender.711 Note also the ability of the Swedish police to react on the spot and thereby create the circumstances which allow for a dismissal. The preparatory works emphasize the pedagogical value of a fast response.712 This means that a certain restriction of the presumption of innocence as a justice consideration is accepted on the basis of considerations of welfare. The balance to be struck becomes visible in the precondition that the offender has to be caught in the act or to confess,713 which again reflects the welfare/justice clash. The broadened rules for a dismissal in relation to young offenders can also be seen as an expression of this balancing act. However, although the Swedish public prosecutor makes considerable use of this tool, it is not employed as frequently as it is by the German public prosecutor.714

711 See for Sweden SOU 1993:35, 71 and Brå Report 2000:7, 29; for Germany Schaffstein, Beulke, and Swoboda (2014), 261 and Eisenberg (2016), §45 margin no.17a.

712 See prop.1987/88:135, 26.

713 Ibid., 26–7.

714 Before the LUL was tightened up in 1988, a dismissal was the most common response to juvenile offences. After 1988, the number of cases being dismissed halved. After the 2007 reforms,

The fact that the meeting with the Swedish public prosecutor delivering a dismissal should constitute a serious warning from society can be seen as an expression of justice considerations. In fact, this kind of dismissal is much like a verdict, since it can also contain legal consequences – for example, juvenile care.

The fact that a decision can be revoked if the young offender does not comply with it also reflects a balance between justice and welfare considerations and an expression of the welfare/justice clash similar to that found in the German juvenile criminal justice system. The diversion can be seen as giving the young perpetrator a chance to prove that he or she can become a law-abiding citizen without the intervention of the state, and so avoid the stigmatization and the harm that comes from facing a trial. However, if the young offender does not comply, justice considerations – for example, the need for a response based on the principle of proportionality – come to the fore. Furthermore, regarding the second form of dismissal, it should be noted that only measures comparable to juvenile care suffice as a justification for a dismissal and none of the other legal consequences – for example, community service for juveniles – do. This again illustrates the importance of juvenile care as the overarching legal consequence for juveniles, as I mentioned earlier.715

The recent change of wording from “diversion” (åtalsunderlåtelse) to “penalty warning” (straffvarning) in July 2015 emphasizes again a neoclassical approach in Sweden and the move away from “welfare” towards “justice” when it comes to young offenders. It further serves as another expression of the welfare/justice clash, for it stipulates the possibility of dismissing a case based on welfare considerations, for example avoiding stigmatization of young offenders and acknowledging the differing conditions of juvenile offending, but on the other hand it demonstrates the importance of justice considerations – not least in the change of label itself.

around 40 per cent of all cases were brought to trial, which has meant another step away from diversion. See Holmberg (2013), 319–20. This reflects the turn towards a proportionality approach in Sweden. According to the “Kriminalsstatistik” from Brå 2012, 37 per cent of all cases in 2011 were dismissed by the public prosecutor.

715 See section