The treatment of young offenders has been a topic in German law for centuries.
The Reichsstrafgesetzbuch (RStGB), enacted in 1871, was the first nationwide criminal code in Germany. According to the RStGB, juveniles between the ages of 12 and 18 were to be held responsible for criminal actions if they had sufficient intellectual insight into the wrongness of the deed (mens rea). They were tried by the regular criminal courts, applying the same procedural rules as applied to adults, although there was the possibility of mitigating the sentence.
During the second regional congress of the International Penal Law Association in Halle, Germany, in 1891, the idea of an independent “juvenile law” was mooted. The suggestion of the formation of a separate criminal law for juveniles was initially prompted by two factors: first, the modern school of criminal law associated with Franz von Liszt sought the transformation of traditional retributive criminal law into preventive criminal law. This was based on the understanding that the purpose of criminal law is not to punish guilt but to prevent future criminal offences. Secondly, new biological, psychological, and sociological insights supported the idea that children below a certain age lacked criminal capacity and that the interests of juveniles should be prioritized. A juvenile court movement developed that aimed at the rehabilitation of juveniles.299 It stressed the need for a completely different system of justice for juvenile offenders, which it envisaged as a system of education.300
Since parliamentary legislation had not kept up with these developments, the reformers acted on their own initiative. The juvenile court movement emerged as an informal task force of practitioners, politicians, and scholars. In 1908, some German courts in Frankfurt am Main, Cologne, and Berlin developed special court chambers to experiment with new ways of dealing with young offenders. They were departments of the local criminal courts given special jurisdiction for all defendants between the ages of 12 and 18. In 1911, the first fully specialized juvenile prison was opened in Wittich/Mosella. In 1917, the reformers founded a reform organization which still exists today (Deutsche Vereinigung für Jugendgerichte und Jugendgerichtshilfen).
299 See Jill Mehlbye and Lode Walgrave, Confronting Youth in Europe (Copenhagen: AKF Forlaget, 1998), 255.
300 See Hans-Jörg Albrecht, “Juvenile Crime and Juvenile Law in the Federal Republic of Germany,” in Juvenile Justice Systems – International Perspectives, 171–207 (2nd Edition. Toronto:
Canadian Scholars’ Press, 2002), 172.
One of the central questions for this movement was whether there should be a unitary system combining justice and welfare or whether it would be preferable to have different legal rules and different jurisdictions for welfare and criminal justice purposes.301 The outcome of this debate was a dualistic system of welfare and justice, partly consisting of the Jugendgerichtsgesetz,302 which survives to this day. The JGG was developed by Gustav Radbruch, elaborating on the ideas of Franz von Liszt,303 and was enacted on 16 February 1923.304 It was the first regulation to deal exclusively with all juvenile criminal justice matters in Germany, and it replaced §§55–7 of the StGB.
301 See Berthold Simonsohn, Jugendkriminalität, Strafjustiz und Sozialpädagogik (Vol.325. Berlin:
Suhrkamp, 1969), 7ff. and Bundesministerium für Jugend-, Familie und Gesundheit (1973),
“Diskussionsentwurf eines Jugendhilfegesetzes”.
302 The literal translation of “Jugendgerichtsgesetz” – Juvenile Courts Act – reflects the historical roots of the JGG, which was greatly influenced by the specialized judges of juvenile chambers at courts in select bigger cities of Germany (like Berlin, Frankfurt am Main, and Cologne). The other part was the Jugendwohlfahrtsgesetz (JWG), which was enacted in 1922, before the JGG.
The JWG dealt with young persons in need of care and was applied when a child was below the age of criminal capacity or a juvenile’s personal development was assessed as being “in danger”. It was a law that provided intervention in the classic sense of the parens patriae doctrine; the state replaces parents who are not able or willing to fulfil their educational duties. The educational measures imposed by the JWG were similar or even the same as the educational measures stipulated in the JGG today. Finally, in 1990, the JWG was replaced by a modern law of social welfare. The juvenile welfare boards offer help; they are not agents of intervention.
303 One of the reasons that juvenile criminal law sought to distance itself from adult criminal law was the “Marburg programme” set up by Franz von Liszt (1905). In this programme, von Liszt stressed the damaging effects of adult criminal penalties – then almost exclusively prison sentences – when applied to juvenile offenders. He claimed that imprisonment should be reserved for a small group of offenders assessed to be in need of extensive rehabilitation, to be administered during long prison sentences and aimed at reducing the risks of recidivism. This represented a call for alternatives to imprisonment for all other offenders. But it should not be overlooked that von Liszt’s approach lacked a convincing theory that could explain the evident failure of traditional criminal law and criminal sanctions and why the alternative he proposed would be more effective.
The rise of the social work professions and their insertion in to the criminal justice system during the twentieth century and the development of “labelling theory” (which stipulated that being labelled as a “deviant” causes a person to engage in deviant behaviour) have helped to close this gap. See Franz Von Liszt, “Kriminalpolitische Aufgaben (1889-1892),” in Strafrechtliche Aufsätze und Vorträge (Vol. 1. Berlin 1905), 290, 426ff.
304 See Ulrich Eisenberg, JGG – Jugendgerichtsgesetz mit Erläuterungen (18th Edition. München:
C.H. Beck, 2016), Introduction, margin no. 1.
The JGG involved several fundamental changes to the criminal code. It introduced educational measures (Erziehungsmassregeln) as a legal consequence for young offenders in addition to the sanctions applicable for adults. Its justification was the need to protect the young from the supposedly corrupting effects of the adult world (including its criminal justice system).305 The age of criminal responsibility was raised from 12 to 14. The mens rea condition was expanded: the defendant now needed not only to be intellectually but also morally mature in order to be responsible for his or her criminal actions.
Furthermore, the young perpetrator had to be deemed capable of directing his or her behaviour in a way that befitted the intellectual and moral status reached.
Punishment as prescribed by the StGB should only be inflicted if it was deemed unavoidable (and even then only in a mitigated form); whenever educational measures seemed promising and therefore sufficient, the JGG was applicable.306 Court proceedings were adapted to educational needs: for example, the basic principle of closed doors in a juvenile trial307 was introduced in order to protect the young person’s privacy and to avoid stigmatization. Further, it was ensured that there was a social court assistant working for social services present.308 The social court assistant would provide an assessment of the personality of the young offender, support and mentor the young offender, and assist the juvenile court in finding the appropriate sanction.
After 1933 the Nazi regime immediately set about reshaping the JGG in order to replace rehabilitation with retribution. As a result, on 6 November 1943, the Reichsjugendgerichtsgesetz (RJGG) was enacted. The old non-criminal sanctions were complemented by the new category of “corrective measures”
(Zuchtmittel), including warnings, penalties, and juvenile detention of up to four weeks.309 The idea of “educational measures instead of punishment” was replaced with “education by punishment”.310 Juvenile imprisonment terms of a minimum of three months and a maximum of ten years were introduced. The
305 See Hans-Jörg Albrecht, “Youth justice in Germany,” (Crime and Justice 2004, Vol.31: 443–
93), 443–4 or Eisenberg (2016), Introduction, margin no. 13–14.
306 See Eisenberg (2016), Introduction, margin no. 2.
307 §48 JGG.
308 §38 II JGG.
309 See Eisenberg (2016), Introduction margin no. 4.
310 See Frieder Dünkel, “Juvenile Justice in Germany: Between Welfare and Justice,” in International Handbook of Juvenile Justice, 225–62 (Dordrecht: Springer, 2006), 226–7, who reflects that the repressive meaning of education prevailed.
suspended sentence (or probation) was abolished.311 The limits of criminal capacity were changed by introducing the possibility of punishing children between the ages of 12 and 14 if they committed a severe offence that required a legal consequence to defend the legal order .312 Juveniles between 14 and 17 could be treated and sanctioned as adults, and they could face sanctions like the death penalty and castration if they committed a “severe crime with heinous intent” or were regarded as “by their character abnormally serious criminals”.313 After World War II, most of the Nazi elements were removed314 from the JGG, but it was not until 4 August 1953 that a revised, democratic JGG was enacted.315 This JGG retained the three sub-divisions of legal consequences for young offenders, which exist to this day, but changed their ranking. Educational measures were prioritized, followed by corrective measures, and then juvenile imprisonment as a last resort – the ranking that is still in force today.316 Education thus became the overriding principle.317
In the 1970s, the choice between a welfare model and a criminal justice model was again the topic of discussion, but attempts to place juvenile delinquents completely under the regime of welfare laws and welfare administration, and thereby abolish juvenile criminal law, did not succeed.318 In the 1980s, new
311 It had been introduced in 1923 as an option for young offenders only; see Albrecht (2004), 447.
312 This according to §3 II S.2 RJGG; see Ostendorf (2016), Basics §§1 and 2, margin no. 2.
Only in the period of the Nazi Regime between 1933 and 1945 were 12- and 13-year-olds
“recriminalized” for certain offences and behaviours. Today, the lowering of the age of criminal responsibility is only an issue for a few conservative politicians of the Christian Democratic Parties (CDU/CSU), but the policy has no chance of being accepted by the majority of politicians; see Dünkel (2006), 3.
313 §20 I and II RJGG. These provisions were strengthened in the course of the war, when special wartime criminal regulations for crimes (Kriegssonderstrafrechts-Verordnung) were introduced.
314 However, the legislature decided to keep short-term detention (up to four weeks) as a short, sharp shock treatment, as this also existed in other European jurisdictions (for example British detention centres).
315 BGBl. I, 751.
316 The possible duration of juvenile imprisonment was changed to a minimum of six months and a maximum of five years.
317 BT-Drucks. 1/3264, 39. See also the discussion of the guiding principle in section 3.2.
318 These attempts were mostly instigated by practitioners and critical university scholars, who raised grave doubts about the existing system. It was during this time that Germany came closest
work on legal reform began. The Federal Ministry of Justice did not succeed in presenting a fully revised JGG bill, but, in 1990, the parliament passed the 1.
JGG-Änderungsgesetz.319 The next changes to the JGG occurred through the Justizmodernisierungsgesetz (JuMoG),320 from 22 December 2006, which mostly adjusted procedural rules. The 2. JGG-Änderungsgesetz321 entered into force on 13 December 2007 and for the first time stipulated explicitly (in §2 I s.2 JGG) the educational aim which forms the guiding principle of the juvenile criminal justice system.
The JGG does not constitute a “new juvenile criminal law”. In all proceedings involving young offenders, the regulations of the general criminal law, both substantive and procedural, are applicable unless modified by the JGG. This means that the application of the JGG is restricted to crimes defined by the general criminal law322 and that the JGG is – according to §2 II JGG – lex specialis.323 Most of the JGG’s regulations concern procedural rules, and they contain a specific system of legal responses324 applicable to young offenders. The legal responses provided for by the JGG are characterized by the principle of subsidiarity or minimum intervention. This means that a criminal response should only be selected when absolutely necessary. Furthermore, legal responses are limited by the principle of proportionality, and a legal consequence of incarceration is considered a measure of last resort (ultima ratio). Consequently, the primary sanctions of the juvenile court are educational or corrective
to abolishing juvenile criminal law and replacing it with a youth welfare law. One reason for the failure of this initiative was the strong resistance by criminal justice professionals, which rendered a compromise impossible.
319 “First Act for the Alteration of the Juvenile Justice Act” – my translation. See BGBl I, 1853.
This bill dealt with the most urgent problems. The plan was to present a thoroughly restructured JGG in 1992, but this never happened because of the overload of the governmental system caused by the German reunification in 1990. The changes had been developed by active and forward-thinking practitioners and scholars from the late 1970s; see Mehlbye and Walgrave (1998), 259.
Furthermore, new educational measures were introduced (for example community service and social training courses).
320 “Act to Modernize the Juvenile Justice Act” – my translation. BGBl. I, 3416.
321 BGBl. I, 2894.
322 See Eisenberg (2016), Introduction, margin no. 16 and §1 margin no. 23; see also §4 JGG.
323 See Eisenberg (2016), §2 margin no. 17-8.
324 I employ the term “legal responses” to cover all legal consequences provided for by the JGG as well as the dismissal/diversion of a case.
measures. This structure is based upon the guiding principle of the German juvenile criminal justice system, to which I now turn.