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legal uncertainty347 it would create in substantive criminal law.348 To that extent, the rule of law, as a justice consideration, sets boundaries to the educative guiding principle. Respecting the principle of education in the procedural framework and in the choice and design of the legal consequence is generally seen as sufficient.

3.3.2. (In)effectiveness

Critics of the German model might cite the fact that empirical studies have not been able to prove that a welfare approach focusing on the offender rather than on the offence has any positive preventive effects. Such a lack of empirical evidence has also been one of the main arguments for Sweden to change their system of legal consequences.349 However, in relation to the effectiveness of the legal consequences available for young offenders (possibly except in the case of incarceration), it has to be acknowledged that the value of empirical studies is a complicated matter. It has not yet been possible to establish comprehensively which path to choose: welfare or justice.350 The effectiveness of a neoclassical approach is therefore as debatable as that of an educational approach. Yet, as mentioned in chapter 2,351 a rather established and empirically well-founded claim in criminology is that imprisonment or detention of any kind does not have much of a positive effect on young offenders, either from a general or from an individual preventive point of view (in fact quite the opposite).352

347 The principle of legal certainty is anchored in the German constitution – Art.103 II Grundgesetz (GG).

348 See BGH StV 2000, 670.

349 See SOU 1995:91, Part II, 46–7.

350 See Thomas J. Bernard and Megan C. Kurlychek, The Cycle of Juvenile Justice (2nd Edition.

New York: Oxford University Press, 2010). However, this kind of empirical research falls within the realm of criminology and is not the focus of this thesis. Consequently, I do not proceed further into this wide and complicated field but just want to point out the problem.

351 See section 2.1.3.

352 See Walter (2006), 249; Maeland (2012), 204; Gröning (2014), 318; Pettersson (2009), 39ff.

in relation to recidivism.

3.3.3. Discretion and the problem of “relative justice”

An implication of the kind of individualistic approach we find in the German juvenile criminal justice system is the broad discretion granted to the juvenile court.353 This may be in conflict with the principle of legal certainty and with the rule of law, the latter of which is a constitutional principle set out in Art.20, 28 I GG. The BVerfG has decided that the broad discretion of the juvenile court does not conflict with the principle of legal certainty or the rule of law since the juvenile court still operates within the framework of the criminal law in terms of offences, which makes it sufficiently certain (nulla crimen sine lege Art.

103 II GG).354 Furthermore, there are clearly defined demands in relation to the legal consequences.

However, apart from diminished transparency and predictability and the obvious minimization of the monitoring role of the state through a reduction in its ability to control,355 a problem resulting from the broad discretion of the juvenile courts is the disparity of verdicts. Considering the broad discretion of German juvenile courts, it is not surprising but rather to be expected that verdicts in comparable cases differ considerably across Germany. The heterogeneous character of criminal verdicts has been documented several times over the years.356 The differences are striking, not only because of their frequency but also in terms of their magnitude. For example, the so-called

“Nord-Süd-Gefälle”357 refers to the fact that verdicts for young offenders in the north of Germany tend to be more lenient than in the south. There is a similar divide with regard to dismissals of cases and the application of the JGG to young adults.358 This leads to the rather absurd circumstance that an offence that receives a sentence of, for example, community service for juveniles in Hamburg

353 See section 6.2.

354 See BVerfGE 74, 102.

355 See Fionda (2005), 270, who argues that such a model can be justified on the basis of its character of “measured minimalism”, rooted in its benevolent intentions.

356 See Streng (1984), 13.

357 “North–South divide” – my translation. See Klaus Laubenthal, Helmut Baier, and Nina Nestler, Jugendstrafrecht (Dordrecht and Heidelberg and London and New York: Springer, 2015), 53; and also, for a little more detail, Ostendorf (2016), Basics §§105 and 106 Margin no.7, which also mentions an “East–West divide”.

358 See Mathias Kröplin, Die Sanktionspraxis im Jugendstrafrecht in Deutschland im Jahr 1997 – ein Bundesländervergleich (Godesberg: Forum Verlag, 2002), 6.

may lead to juvenile imprisonment for young offenders in Munich.359 The disparity in verdicts cannot be explained by differences in the characteristics of the offences or the offenders.360 Criticisms of such disparities in legal doctrine and from practitioners themselves have long been made.361 Expressions like

“fishing in the dark”,362 “anarchical”,363 and “chaos”364 reflect this critique. Still, we should not ignore the fact that it is hard to compare criminal sentences because of the uniqueness of individual cases. As Hogarth points out:

Without adequate statistical control over the types of cases appearing before the courts, it would be wrong to assume that there is a genuine lack of uniformity in sentencing. Apparently unequal sentences for similar offences may also result from differences in the social contexts in which the courts operate, such as differences in the crime rate, or in public opinion, or in the resources to deal with offenders available locally.365

The next question that arises, then, is whether the disparity in verdicts amounts to an infringement of the principle of equal treatment.

359 See Schaffstein, Beulke, and Swoboda (2014), 264, who find that a young offender in Bavaria who has previously committed two minor property offences runs a risk of being sentenced in a formal trial that is 18 times higher than the risk they would face in Hamburg (in relation to the year 1994).

360 See Albrecht (2002), 200–1; see also Wolfgang Heinz, “Mehrfach Auffällige – Mehrfach Betroffene. Erlebnisweisen und Reaktionsformen,” (Deutsche Vereinigung für Jugendgerichte und Jugendgerichtshilfen (DVJJ), Bonn 1990: 30–73), 62.

361 Wach indicates as early as 1890 that “it is true, the judicial sentencing is in major parts arbitrariness, mood, chance. This is an open secret, a painful fact of experience to everybody who has been working as a penal law practitioner” (see Adolf Wach, Die Reform der Freiheitsstrafe. Ein Beitrag zur Kritik der bedingten und der unbestimmten Verteilung (Leipzig 1890), 41). Similar references to arbitrariness, mood and chance can be found in Wilhelm Kahl, “Reform der Strafzumessung,” (Deutsche Juristen-Zeitung 1906, Vol.11: 895–901), 895. Hellmuth von Weber,

“Die richterliche Strafzumessung,” (Schriftenreihe der juristischen Studiengesellschaft Karlsruhe 1956, Vol. 24), describes as “a vital question” the matter of which judge an offender is brought before (19).

362 See von Liszt (1905), 393.

363 See Heinrich Drost, Das Ermessen des Strafrichters. Zugleich ein Beitrag zu dem allgemeinen Problem Gesetz und Richteramt (Berlin: Carl Heymanns Verlag, 1930), 117.

364 See von Weber (1956), 19.

365 Hogarth (1971), 7.

3.3.4. (In)equality

The demand for equality before the law is part of the rule of law and the demands of legality in a constitutional state. Within this framework, equality is used to substantiate predictability.366 Predictability, then, is a central issue when measuring legal certainty.367 Legal equality fundamentally means that like cases have to be treated alike and unlike cases differently, unless there is reason for differential treatment.368 In Germany, the principle of equality is adopted as a principle of constitutional status in Art. 3 GG. Consequently, the disparity in verdicts for young offenders conflicts with one of the cornerstones of the German constitutional state.369 This inconsistency and lack of predictability may lead to diminished trust in the system.370

The principle of equality may be infringed in two ways: through the disparity in verdicts amongst different young offenders371 and through the disparity in verdicts between young offenders and adult offenders. The educative guiding principle may lead to legal consequences for a young offender which could either be considered “harsh” or “lenient” in comparison to the legal consequence an adult offender would face in a similar case. However, in the framework of Art.3 GG, and also in relation to the principle of proportionality, it can only be concluded that this constitutes a disparity if young offenders are comparable to

366 See Helén Örnemark Hansen, “Liket inför lagen-lika inför straffet?- För- och nackdelar med individanpassad rättssäkerhet,” (Nordisk Tidsskrift for Kriminalvidenskab 2011, Vol.98, No.3:

267–83), 268. However, Claes Lernestedt, Likhet inför lagen – rättsfilosofiska perspektiv (Stockholm: Norstedts Juridik, 2015), points out several problems that arise in seeking to define equality (15–21).

367 See Örnemark Hansen (2011), 268.

368 This definition of equality was given by the BVerfG in BVerfGE 55, 88.

369 See Albrecht (2002), 201 and Schaffstein, Beulke, and Swoboda (2014), 3.

370 See Schaffstein, Beulke, and Swoboda (2014), 3. Another aspect of this thought is the possible infringement of the principle of proportionality and the personality rights of the young offender;

see Ralph Grunewald, “Der Individualisierungsauftrag des Jugendstrafrechts – Über die Reformbedürftigkeit des JGG,” (Neue Zeitschrift für Strafrecht (NStZ) 2002: 452–8), who argues in relation to the latter that personal autonomy is also respected when the state enables the young offender to develop the capacity to understand and respect the fundamental values of a society (455–6).

371 Note here that Albrecht (2002) emphasizes an additional aspect of inequality that arises from the reliance on the principle of education in the juvenile justice system: disadvantaged juveniles are more likely to face intensive types of sanctions (200).

adult offenders. The BVerfG has established that groups subject to a norm may be treated differently if there are differences between the groups of such form and weight that differential treatment can be justified.372 Such differences between young and adult offenders were described in chapter 2. The establishment of a specific juvenile criminal law is an indication of the fact that German law acknowledges such differences.373 Juveniles and even young adults are different from adult offenders to such an extent that we cannot say that in instances of differential treatment their treatment is “harsh” or “lenient”; they are simply treated differently.374 This means that they should be treated differently from adults, both as perpetrators and as victims.375 Such a requirement also features in the UNCRC, which demands that “the best interests of the child” (Art.3) are considered, building on an understanding that children are vulnerable and need support and protection.376

However, this still leaves us with the problem of the disparity of verdicts between young offenders themselves.

3.3.5. Independence of the juvenile court

As I mentioned above, it is obvious that the problem of disparity and possible inequality in verdicts has its roots (partly) in the broad discretionary power enjoyed by the German juvenile court. This discretionary power is closely connected to the independence of the judiciary. The more discretion is limited (for example through sentencing guidelines), the less independent judges become.

Ashworth asks whether the large degree of discretion given to judges in sentencing is not contrary to the spirit of the principle of legality. The argument is that broad and relatively unstructured discretion results in defendants being judged and deprived of their liberty for reasons which have not been formally authorized, which may not be fully declared, and which may include the

372 See BVerfGE 55, 88.

373 See Rudolf Brunner and Dieter Dölling, Jugendgerichtsgesetz: Kommentar (12th Edition. Berlin:

Walter de Gruyter, 2011), Introduction II Margin no.26a; Schlüchter (1994), 81; and Schaffstein, Beulke, and Swoboda (2014), 216–17.

374 See Schaffstein, Beulke, and Swoboda (2014), 3; see also Grunewald (2002), 456.

375 See Diesen, Lernestedt, Lindholm and Pettersson (2005), 195, 204

376 See RättsPM 2013:7 section 11. See also sections 3.5. and 3.6.2., below.

subjective preferences of the individual judge.377 The alternative to such broad discretion would be to have detailed rules that guide the judge’s decision. It comes down to the question: whom do we trust more, the judge or the legislature?

On the other hand, even the independence of the judiciary rests, at bottom, on the legislature. The independence of the judiciary – just like the principle of equality – is constitutionally protected, and it is set out in Art.91 GG.

According to the BVerfG, sentencing constitutes no violation of Article 3 GG (which is also followed by the BGH today) because the independence of the judiciary is recognized as a systematic limitation of the principle of equality. The criminal court is only required to judge without respect to the identity of the person and also, when determining the sentence, to avoid making any arbitrary distinctions.378

Nevertheless, sentencing is just like any other application of the law and so is subordinate to “the mandatory precepts of equality”.379 Equality before the law must therefore be interpreted as relevant equality in the eyes of the law.380 The aim should be to achieve what Hood describes as “equality of consideration”,381 which means that in similar situations courts ought to consider similar factors and have similar reasons for selecting particular forms of sentencing.382

However, the geographical disparities are too great to be explained by “equality of consideration” or “relevant equality”. It remains the case that the educative

377 See Andrew Ashworth, “Techniques for reducing subjective disparity in sentencing,” in Disparities in Sentencing: Causes and Solutions (Collected Studies in Criminological Research, Vol.

XXVI, 101–33. Strasbourg, 1989), 120.

378 See BVerfGE 1, 345.

379 See BVerfGE 19, 47.

380 See Lernestedt (2015), 67.

381 See Roger G. Hood and Hermann Mannheim, Sentencing in magistrates’ courts: a study in variations of policy (London: Stevens, 1962), 129.

382 Following this thought, it is consistent with legal principles that verdicts may turn out differently in at first glance similar cases. Dworkin (1978) also defends this outcome with his example of the judge “Hercules” as the ideal judge. What he demands of his “Hercules” is the well-balanced consideration of all aspects of a case. In pursuing this goal, different judges might reach different verdicts which are all still in line with the rule of law. This leads to the phenomenon of “subjective objectivity” (see Ronald Dworkin, Taking Rights Seriously (Cambridge:

Harvard University Press, 1978)).

guiding principle leads to an inequality in verdicts between different young offenders.