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Overall, the Swedish and the German juvenile criminal justice systems seem to pursue similar approaches regarding legal consequences for young offenders.

Educational and corrective measures in Germany more or less amount to fines, community service for juveniles, and juvenile care in Sweden. The German conditional sentence and the Swedish conditional sentence and supervision also mirror each other. When looking closer into the Swedish juvenile justice system, what we find is that the guiding principles of proportionality, predictability, and equality (justice considerations), instead of education and treatment (welfare considerations), are not as clearly reflected in the system of legal consequences for young offenders as the preparatory works might suggest. The neoclassical turn in the Swedish juvenile criminal legal system is supposed to be a turn away from individualized solutions in favour of equality and predictability. However, the study of the structure of the legal consequences available for young offenders reveals that there is still a lot of room for individualized solutions. The legal consequence of “juvenile care”, in particular, is broad and can take many different forms, which brings it closer to the tailored solutions used in the German juvenile criminal justice system for all sorts of different perpetrators and offences. Here we see evidence of the earlier Swedish welfare approach, which still remains and did not disappear with the turn towards neoclassicism. The influence of welfare considerations becomes especially obvious in the choice of

the legal consequence. It is the young offender’s need for care that is the decisive factor in whether the young perpetrator is to be sentenced to juvenile care or (if there is no need for care) sentenced to community service for juveniles instead.

This trace of an enduring welfare approach is also felt in the enforcement of the legal consequence, which is conducted by social services if it consists of juvenile care, closed institutional treatment, or community service for juveniles. As mentioned in section 3.5, the structure of the Swedish juvenile criminal justice system has one foot in the adult criminal justice system and one in child welfare, two systems based on fundamentally different principles.815 This demonstrates the welfare/justice clash.

A difference between the two systems lies in the fact that Germany still features juvenile prisons. Sweden, in contrast, abolished juvenile prisons and replaced them with closed institutional treatment under the supervision of social services.

However, research shows that the difference between the closed institutional treatment and juvenile prison in Sweden is insignificant.816 Young offenders often do not understand the difference. What matters to them is that they are being held in a closed institution. Educational treatment is also provided in German juvenile prisons. Consequently, the difference is not as substantial as it might seem. All these options respect the greater vulnerability of young offenders deprived of their freedom (a welfare consideration) and provide

“treatment” rather than “punishment”. Here, the welfare/justice clash is visible in the balancing of an actual punishment in the form of incarceration and the aim of designing this incarceration appropriately from a treatment perspective.

Legal consequences for young offenders in Germany are held completely separate from legal consequences for adult offenders. This fact can be interpreted as an outcome of welfare considerations in this realm of justice. In Sweden, by contrast, legal consequences especially created for juveniles are an additional alternative, complementing the adult legal consequences which might also be applied to young offenders (even if juvenile legal consequences should be the first choice). The existence of specific legal consequences can be understood as an outcome of welfare considerations but their placement in the structure of adult criminal legal consequences reflects their character as a criminal punishment (a justice consideration). Therefore, the assigned place of the legal consequences for young offenders in either country can also be interpreted as an

815 See Lappi-Seppälä (2011), 199 and Lappi-Seppälä and Storgaard (2014), 334.

816 See Tove Pettersson, Återfall i brott bland ungdomar dömda till fängelse respektive sluten ungdomsvård (Statens institutionsstyrelse. Report 2/10. Stockholm: Edita, 2009).

outcome of the balancing of welfare and justice considerations and therefore as an expression of the welfare/justice clash.

In Sweden, the options for dismissing a case are more restricted and fewer cases are dismissed by the juvenile public prosecutor as compared with Germany.

However, the numbers might not be as significant as we might suppose at first.

The reason is that in Sweden even the police are allowed to “dismiss” cases (rapporteftergift). Consequently, many minor cases, which in Germany end up on the juvenile public prosecutor’s desk, will have already left the system by this stage. This means that, in general, both countries feature a system of selecting and dismissing/diverting minor offences before entering the juvenile trial. But it has to be noted that Swedish law does not provide for the possibility of the juvenile court diverting a case once it has entered the courtroom. Still, the overall framework means that the rules specifically introduced for dismissing/diverting a case when the offender is a young person reflect the welfare/justice clash in both investigated systems by broadening the possibilities for a dismissal because of the acknowledgement of the stigmatizing effect of a trial (welfare considerations), though still within a framework governed by justice considerations. Even if there are certain differences in the way the rules are constructed and applied, the mere fact that the rules for a dismissal are considerably broadened in both countries shows the strong influence of welfare considerations in this realm of justice. The need to balance the possible harm a trial might cause a vulnerable young offender with the principle of proportionality and the control and safeguards a trial can offer817 reflects the welfare/justice clash.

A main difference between the Swedish and the German juvenile criminal justice systems is found in their approaches to the sentencing of young offenders. Sweden has established a highly structured system of sentencing principles and features fairly precise sentencing rules, which always proceed from the severity of the offence, irrespective of whether the offender is a juvenile, young adult, or adult offender, before granting a “discount” and sometimes translating the adult legal consequence into a juvenile legal consequence. In doing this, the Swedish courts have access to a rather broad range of tools in the form of soft law. This structure and the tools available serve the aims of equality, proportionality, and transparency, and so express justice considerations.

Germany, on the other hand, has almost no rules to guide the sentencing decision, which grants the court a broad discretion that is even greater in

817 See for further elaborations chapter 5.

relation to young offenders. The access to soft law material seems negligible.

Justice considerations like equality and transparency have to take a back seat in favour of welfare considerations in order to enable the juvenile court to tailor the legal consequence to the young offender. Of course, it can be argued that preserving the independence of the judiciary by granting them such discretion is a justice consideration in the wider sense: it protects the criminal justice system from political influence. Yet this discretion is not specific to the juvenile criminal justice system but applies to the approach to sentencing generally in Germany. What makes the German juvenile sentencing system stand out is the even broader discretion enjoyed by the juvenile court, with no guidelines from the legislature apart from the principle of proportionality. This broader discretion is owed to the priority given to welfare considerations, namely the aim of accommodating the individual needs of the young offender.

In sum, a closer look at the legal consequences for young offenders, rules for dismissal/divertive measures, and sentencing reveals that – irrespective their diverging guiding principles – both juvenile criminal justice systems are heavily influenced by welfare considerations and reflect the welfare/justice clash. The turn towards neoclassicism in Sweden has not changed that. On the other hand, the German juvenile criminal justice system is not a pure welfare system either but is also influenced and shaped by justice considerations. Both systems perform a balancing act in seeking to satisfy both ends: welfare and justice.

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.