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Chapter 5

Procedural specifics and protective safeguards

The special features characterizing adolescence described in chapter 2, which underlie the welfare/justice clash, lead to an alternative system of legal responses for young offenders. But this is not all. Because of their limited maturity, it has been claimed that young perpetrators are more likely to make statements, more likely to confess, and that they have less knowledge about their rights.818 Therefore, it is easier to convict them and to impose legal responses on them.

This leads to the necessity to strengthen procedural safeguards regarding young offenders.

In this chapter, I analyse the specific procedural rules and protective safeguards enshrined in the Swedish and the German juvenile criminal justice systems. As in the previous chapter, I divide the sections into an initial descriptive part, which is then followed by an analysis from a welfare/justice perspective.

The procedural rules applicable to young offenders in Germany are gathered together in the JGG. As mentioned in section 3.1., the JGG created no “new juvenile criminal law”. In all proceedings against 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 law819 and that the JGG is – according to §2 II JGG – lex specialis.820

In Sweden, the most comprehensive bill relating to young offenders is the LUL.

It provides rules for police officers, public prosecutors, and courts for how to deal with young perpetrators under the age of 21. The LUL is lex specialis.821 If it does not provide for a rule, the general laws of the Rättegångsbalk (1942:740) (RB)822 are applicable.

German criminal courts operate according to the principle of official investigation – which is described as an inquisitorial principle823 and is to be found in §244 II StPO824 – which stipulates inter alia that the German courts have a basic duty to investigate the facts of a case by themselves to ensure that the judgment is substantively correct.825 This means that the parties propose different kinds of evidence, but it is up to the court to decide what evidence is relevant and therefore to be considered in court.826 However, the parties can file a formal request to consider specific evidence. The court can only decline the

819 See Eisenberg (2016), Introduction, margin no. 16 and §1 margin no. 23; see also §4 JGG.

820 See Eisenberg (2016), §2 margin no. 17–18.

821 See prop.1987/88:135, 17–18 regarding §17 LUL.

822 The Swedish Code of Procedure – my translation.

823 See Werner Beulke, Strafprozessrecht (13th Edition. Heidelberg: C.F. Müller Verlag, 2016), §2 margin no.21. Note that when I speak of an inquisitorial approach, system, etc., I mean this principle of official investigation in its various expressions, even if an “inquisitorial approach” in the narrow sense means that the investigative organs and the judge are unified in one person, which is not the case in the Swedish system or the German system. See also section 6.3.1. and Per-Olof Ekelöf et al., Rättegång första häftet (9th Edition. Stockholm: Norstedts Juridik AB, 2016), 71.

824 And also in §155 II and §60 II StPO.

825 This duty implies the investigation of the sufficient maturity and capability of insight of young offenders according to §3 JGG, as described in section 4.1.1. See MüKoStPO/Trüg/Habetha, 1st Edition 2016, StPO §244 margin no.90.

826 For example, the judge only calls the witnesses he or she considers crucial for determining the facts.

request on the basis of reasons stipulated in §244 III–V StPO. If the parties have missed something, the court has the duty to step in and can demand further investigation by the public prosecutor or even order investigative measures.

Consequently, Germany features an inquisitorial system, which aims at the clarification of the facts and places the responsibility on the court. This also becomes evident in the structure of the proceedings. The court conducts the main questioning, and only afterwards do the public prosecutor and the defence counsel contribute additional questions if something remains unclear. In the German justice system, the principle of official investigation is the major difference between criminal and civil proceedings. Civil proceedings apply an adversarial system:827 the court considers only the evidence presented by the parties and decides accordingly, thereby arriving at “formal” rather than

“material” truth.828 The principle of official investigation is closely connected to the fact that in criminal proceedings the state imposes a punishment. This principle helps to justify the potentially serious interferences with individual freedom that may result from criminal trials.

The Swedish system is not governed by the principle of official investigation to the same extent, though it still affects some of the Swedish procedural rules, especially those that regulate criminal trials.829 Instead of an inquisitorial system, the Swedish model places criminal and civil proceedings closer together, with criminal proceedings also featuring an adversarial system.830 In short, this means that, according to the “principle of disposition”,831 it is up to the parties to choose and present the evidence, which thereby creates the framework for the

827 See Beulke (2016), §2 margin no.21.

828 Ibid., §2 margin no.21.

829 See SOU 2013:17, 214 and Ekelöf et al. (2016), Rättegång I, 71–2.

830 See Josef Zila, “The Prosecution Service Function within the Swedish Criminal Justice System,” in Coping with Overloaded Criminal Justice Systems – The Rise of Prosecutorial Power Across Europe, 285–311 (Berlin: Springer, 2006), 287. The wording (in Swedish “kontradiktorisk”

and “inkvisitorisk”) goes back to Latin roots: contra dicere = contradicting and inquirere = investigate. For the differences between the two approaches, see further for example Ekelöf et al.

(2016) and Rättegång I, 70–1, 75, who point out that the criminal process in Sweden is also described as “ackusatorisk”, from the Latin “accusator”, which means public prosecutor. I decided to translate the word for the Swedish approach as “adversarial”.

831 To be found in chapter 17 §3 and chapter 30 §3 RB. For a more detailed discussion of the principle of disposition, see Larsson, “Dispositionsprincipen och dispositiva regler,” (Svensk Juristtidning (SvJT) 1980, 577–605), 577–88 and Ekelöf et al. (2016), Rättegång I, 61ff.

proceedings.832 The court has no duty to ensure the completeness of the evidence.833 The court merely evaluates the facts of the case on the basis of the presented evidence. Thus, the parties, instead of the court, dominate the trial.834 This is also clear from the structure of the hearing: in contrast to the German approach, the public prosecutor is mainly responsible for questioning. Note here that the Swedish system features a single procedural code for both criminal and civil proceedings,835 which is only possible because an adversarial approach is pursued in both types of proceedings. Yet the principle of disposition is a little more restricted in the criminal trial. For example, the court is not bound by a defendant’s confession,836 and the legal consequence is determined ex officio.837 Furthermore, humanitarian concerns regarding wrongful convictions have been met by placing the burden of proof concerning all directly relevant circumstances on the public prosecutor,838 who is also obliged to observe the principle of objectivity.839 Furthermore, chapter 35 §6 RB stipulates that the court may collect its own evidence; but the expression “may” does not imply any duty to collect evidence.840 A recent proposal – SOU 2013:17 – concerning procedural aspects of the criminal trial suggests even more far-reaching limits concerning the court’s substantive process management; this proposal entails

832 See SOU 2013:17, 213.

833 Sweden has moved away from the inquisitorial model that its legal system previously featured;

see NJA II 1943, 450. See also Ekelöf et al. (2016), Rättegång I, 76–7, which stipulates that the court has no general duty to indicate if the defendant or the public prosecutor has missed an important legal rule or precedent. However, it might be considered suitable for the court to inform the parties if it plans to support the judgment with such a rule/precedent.

834 See Peter Westberg, Domstols officialprövning (Lund: Juristförlaget i Lund, 1988), 29, although this is rather in relation to civil proceedings; also Larsson (1980), 579.

835 The aforementioned “Rättegångsbalk (1942:740)” (RB).

836 See “Thomas Quick case” Ö 3147-09 and Ekelöf et al. (2016), Rättegång I, 70. Note also that Ekelöf et al. (2016), Rättegång I, 71–2, point out that criminal proceedings are steered ex officio to a greater degree in relation to the defendant’s procedural position.

837 See Ekelöf et al. (2016), Rättegång I, 70.

838 See Ekelöf et al. (2016), Rättegång I, 78, Per Olof Ekelöf, Henrik Edelstam, and Lars Heumann, Rättegång fjärde häftet (7th Edition. Stockholm: Norstedts Juridik AB, 2009), 113.

839 See Ekelöf et al. (2016), Rättegång I, 73.

840 In practice, the judges seldom use this option (see SOU 2013:17, 213, 219).

that weaknesses in the evidence should be at the expense of the prosecution and lead to a dismissal.841

Analysis from a welfare/justice perspective

The procedural approaches employed by the Swedish and the German (juvenile) criminal justice systems differ. Sweden follows an adversarial approach featuring the principle of disposition, which gives a prominent role to the parties (the defendant with his or her defence counsel on one side, the public prosecutor on the other), while Germany represents an inquisitorial system, which grants a more active role to the court due to the principle of official investigation. These two concepts represent a striking difference between the German and the Swedish juvenile criminal justice systems in regard to the procedural framework in the (juvenile) criminal trial.

Regarding the welfare/justice clash on this general procedural level, the underlying procedural concepts in both countries are steered by justice rather than by welfare considerations. The principle of official investigation, which is of central importance in the German juvenile criminal justice system, can be interpreted as an expression of a justice consideration: it is guided by the rule of law and its associated safeguards, which protect the defendant from wrongful conviction and so the unjustified interference from the state’s sharpest tools. The Swedish procedural rules pursue an adversarial approach and do not reveal, on a general level, any evidence of welfare considerations either.

Instead, the impact of welfare considerations becomes evident in both countries’

specific juvenile procedural rules, which are lex specialis for young offenders.

The next sections investigate these procedural specifics, which deviate from the general rules.

841 See SOU 2013:17, 220 and 223, which proposes for instance that the judge should not be allowed to act independently in regard to the collection of evidence in matters concerning guilt.

Only the parties should be allowed to determine the question of guilt. Furthermore, SOU 2013:17 proposes that the suggestion of the legal consequence made by the public prosecutor should bind the court insofar as it should not be allowed to impose a more serious legal consequence (234–5, 243). Prop.2013/14:170, based on this SOU, did not adopt these changes (yet), however, and only dealt with complex criminal proceedings (stora brottmål) and proceedings cancelled due to the fact that the defendant did not show up.