Belgium/ Belgique: L’article 37, § 1, alinéas 1 et 2 de la loi du 8 avril 1965 relative à la protection de la jeunesse et la prise en charge des mineurs ayant commis un fait qualifié infraction précise les facteurs à prendre en compte lors de la prise d’une mesure de garde, de préservation ou d’éducation par le tribunal de la jeunesse. Ces facteurs sont :
- la personnalité et le degré de maturité de l’intéressé ;
- son cadre de vie ;
- la gravité des faits, les circonstances dans lesquelles ils ont été commis, les dommages et les conséquences pour la victime ;
- les mesures antérieures prises à l’égard de l’intéressé et son comportement durant l’exécution de celles-ci ;
- la sécurité de l’intéressé ;
- la sécurité publique.
On retrouve dans ces facteurs des objectifs protectionnel, restaurateur et de protection de la société.
Bien que le législateur n’ait pas précisé que ces éléments devaient également être considérés par les procureurs lorsqu’ils sont appelés à prendre une décision sur l’action publique, ils doivent aussi guider son action.
Les décisions des procureurs devront aussi tenir compte des principes de l’administration de la justice des mineurs formant le titre préliminaire de la loi du 8 avril 1965. Il en sera ainsi particulièrement des principes suivants :
« (…) 3° l'administration de la justice des mineurs poursuit les objectifs d'éducation, de responsabilisation et de réinsertion sociale ainsi que de protection de la société;
4° les mineurs ne peuvent, en aucun cas, être assimilés aux majeurs quant à leur degré de responsabilité et aux conséquences de leurs actes. Toutefois, les mineurs ayant commis un fait qualifié infraction doivent être amenés à prendre conscience des conséquences de leurs actes;
5° les mineurs jouissent dans le cadre de la présente loi, à titre propre, de droits et libertés, au nombre desquels figurent ceux qui sont énoncés dans la Constitution et la Convention internationale relative aux droits de l'enfant, et notamment le droit de se faire entendre au cours du processus conduisant à des décisions qui les touchent et de prendre part à ce processus, ces droits et libertés devant être assortis de garanties spéciales :
a) les jeunes ont le droit, chaque fois que la loi est susceptible de porter atteinte à certains de leurs droits et libertés, d'être informés du contenu de ces droits et libertés;
b) les père et mère assument l'entretien, l'éducation et la surveillance de leurs enfants. Par conséquent, les jeunes ne peuvent être entièrement ou partiellement soustraits à l'autorité parentale que dans les cas où des mesures tendant au maintien de cette autorité sont contre-indiquées;
c) la situation des mineurs ayant commis un fait qualifié infraction requiert surveillance, éducation, discipline et encadrement. Toutefois, l'état de dépendance où ils se trouvent, leur degré de développement et de maturité créent dans leur chef des besoins spéciaux qui exigent écoute, conseils et assistance;
d) toute intervention comportant une mesure éducative vise à encourager le jeune à intégrer les normes de la vie sociale;
e) dans le cadre de la prise en charge des mineurs ayant commis un fait qualifié infraction, il est fait recours, lorsque cela est possible, aux mesures, prévues par la loi, de substitution aux procédures judiciaires, et ce, en restant cependant attentif à l'impératif de protection sociale;
f) dans le cadre de la loi, le droit des jeunes à la liberté ne peut souffrir que d'un minimum d'entraves commandées par la protection de la société, compte tenu des besoins des jeunes, des intérêts de leur famille et du droit des victimes. »
Pour les personnes âgées de moins de 12 ans au moment de la décision de la mesure, seules les mesures suivantes peuvent être prises : réprimander le jeune, le placer sous le contrôle du service social compétent, le soumettre à un accompagnement éducatif intensif et à un encadrement individualisé d’un éducateur référent.
Le tribunal ne peut ordonner la mesure de placement en institution communautaire publique de protection de la jeunesse, en régime éducatif fermé, qu’à l’égard des personnes qui ont quatorze ans ou plus.
Croatia/ Croatie: In the Republic of Croatia, pursuant to Article 4 of the Law on Juvenile Courts (NN no. 12/2002), general law, that is provisions of the Criminal Code, Criminal Procedure Act, Law on Courts, and Law on the protection of persons with mental disorders are applied to young perpetrators of criminal offences (juveniles and adolescents). These laws prescribe sanctions for criminal offences and other general regulations unless the Law on Juvenile Courts provides otherwise. Sanctions which may be prescribed and applied against juveniles are educational measures, juvenile imprisonment and security measures. A juvenile, who at the time of perpetration of the criminal offence is 14 years old, but under 16 (younger juvenile), may receive only educational measures, while a juvenile who at the time of perpetration of the criminal offence is 16 years old, but under 18 (older juvenile), may receive educational measures under conditions prescribed by the Law on Juvenile Courts and Juvenile Imprisonment. Security measures are also applied to juveniles under conditions prescribed by the Law on Juvenile Courts. Within general purpose of criminal sanctions (Article 6 of the Criminal Code) the purpose of juvenile sanctions is to influence the upbringing, development of character and strengthening of personal responsibility in juveniles by providing protection, care, assistance and supervision and securing general and professional education of juvenile perpetrator of a criminal offence. Minimal age threshold if criminal responsibility is 14 years.
Juvenile imprisonment is a penalty of deprivation of freedom with specificities in regard to conditions of pronouncement, duration, purpose and content of the sanction. It may be pronounced to older juvenile for committing a criminal offence for which imprisonment of five (5) years or more is prescribed, if, taking into consideration nature and severity of criminal offence and high degree of guilt it is necessary to pronounce a sentence.
Besides educational measures and juvenile imprisonment, security measures of compulsory psychiatric treatment, compulsory treatment of addiction, expulsion of aliens and forfeiture may also be applied toward juvenile perpetrators; security measure of prohibition to drive a motor vehicle may be applied toward older juvenile.
Provisions of the Criminal Code and criminal-law provisions of other laws of the Republic of Croatia are applied to younger juvenile perpetrators of criminal offences, under conditions prescribed by Article 9 of the Law on juvenile Courts and provisions applied for juvenile perpetrators. Pursuant to Article 109 younger adults adult may receive juvenile sanction when it can be concluded that, taking into consideration the type of criminal offence and the manner of its perpetration, in great length, it is a reflection of the age of a perpetrator and circumstances pointing to perpetrators character justify belief that the purpose of the sanction will be achieved by pronouncing educational measures or juvenile imprisonment. Educational measure may last no longer that until the perpetrator’s 23rd birthday. The longest measure of juvenile imprisonment is ten (10) years. If younger adult, at the time of the trial turns 21, he/she may receive prison sentence instead juvenile imprisonment, and if he/she turns 23 during the trial, he/she will receive prison sentence instead juvenile imprisonment. In case of application of educational measures and juvenile imprisonment to younger adults above mentioned security measures may be applied under same conditions as for juveniles. Security measure of prohibition to prohibition to engage in a profession cannot be applied to younger adult perpetrator.
When general criminal law is applied to younger adult, court is not bound, with restrictions of mitigation of punishment listed in the Criminal Code, to pronounce the lowest measure of the prescribed sentence for the criminal offence. Court cannot pronounce a prison sentence to a younger adult for more than twelve (12) years, unless he/she committed criminal offence for which long-term imprisonment is prescribed or for committing concurrently adjudicated criminal offences (at least two) for which prison sentence longer than 10 years is prescribed.
Denmark/ Danemark: In Denmark, the minimum age of criminal responsibility is currently 15 years.
The Director of Public Prosecutions has issued specific guidelines concerning the handling by the Police and Prosecution Service of criminal cases against young offenders (Instruction no. 4/2007).
Juveniles between the age of 12 and 14:
According to the Administration of Justice Act (AJA) the Police can detain a 12-14 year old offender for a short period of time if the conditions for arrest are fulfilled. The child can be detained in the police station e.g. while being interrogated and can as a general rule only be detained for up to six hours. If the crime is serious e.g. assault or gang related crime and it is imperative to the investigation, the child can be detained for more than six hours. However, the child can never be detained for more than 24 hours and cannot be placed in a room on its own for more than 6 hours.
If the Police are detaining a child, the social services and the parents have to be notified. Also, a representative from the social services as a general rule has to be present during a police interrogation. In cases of violent crime or other kinds of serious crime, the social services have to draw up a plan on how to give the child the support necessary and prevent the child from committing crimes in the future.
According AJA a child under the age of criminal responsibility can be offered (free) legal assistance, if this is needed due the complexity or seriousness of the case (e.g. murder or aggravated assault) or if the child is facing a very high claim for compensation.
Juveniles between the age of 15 and 17:
Where the offender is 15-17 years old the social services have to be notified to the same extent, as is the case with younger children.
Furthermore the Prosecution Service will ask the social services to recommend which type of sanction they find suitable for the offender in question. The prosecutor will then present the social services’ recommendation to the court.
In Denmark, an accused - including a 15-17 year old accused - can be detained on remand when there is a substantiated suspicion that he has committed an offence, which is prosecuted by the State, if under the law, the offence can result in imprisonment for one year and six months or more, and there are specific reason to presume, that he will abscond from the prosecution or the enforcement of the sentence, if there are specific reasons to fear that he at large will commit another offence, or if there are specific reasons to presume, that the accused will impede the prosecution of the case, particularly by removing evidence or warning or influencing others.
An accused can also be detained on remand when there is a particularly confirmed suspicion that he has committed an offence which under the law can result in imprisonment for six years or more, and due regard to enforcement of the law taking into account the seriousness of the matter, is found to require that the accused is not at large.
Finally, detention on remand can take place if the offence is a violation of e.g. the Danish Criminal Code’s (DCC) sections on assault and can be expected to result in an unconditional sentence of imprisonment for at least 60 days and due regard to enforcement of the law is found to require that the accused is not at large.
However according to AJA, detention on remand cannot be used if the offence can be expected to result in a sentence of a fine or imprisonment for any term not exceeding 30 days, or if the deprivation of liberty will otherwise be disproportional to the hereby caused intrusion in the affairs of the accused, the significance of the case, and the sanction that can be expected if the accused is found guilty.
If the conditions for detaining on remand are fulfilled, but the purpose of the detention can be attained through less interfering measure, the court renders, if the accused consents hereto, such a decision in the place of detention. E.g. the court can decide that the accused shall reside in a suitable home or institution.
When the accused is 15-17 years old detention on remand is generally considered disproportional if the accused is to be put in a prison amongst adult offenders for a longer period of time. Therefore, before the court hearing, in order to avoid a disproportional deprivation of liberty, the prosecution will seek to ensure that a secured youth institution is able to receive the accused.
Furthermore, when the accused is 15-17 years old the AJA establishes maximum detaining periods (depending on the seriousness of the crime), that are significantly lower than those that apply to adult offender normal.
Spain/ Espagne: Public prosecutors have the duty to apply the guidelines given by the General Prosecution Office in order to gain uniformity and security in the interpretation of Law. This also applies to juvenile justice. However, the guidelines use to be general. There are no guidelines on minimum age of criminal responsibility because this is a subject that is already established by Law. There is no responsability (no even juvenile responsibility) below 14 years old (article 2 Minors Criminal Liability Law 5/2000, from now on LORPM).
The guidelines given by the General Prosecution Office underlines the necessity of giving due respect to the educative orientation of the procedure and of the sanctions and measures adopted.
There are no guidelines to specify a minimum age to imprision a child because this is a subject that is already established by Law. Minors can never enter into the Penitenciary Sistem: Minors who have been convicted under the Juvenile Justice to a sanction involving deprivation of liberty are never held in institutions for adults, but in institutions specially designed for them (article 45 LORPM).
When minors who have been convicted under the Juvenile Justice reach the age of majority, they are normally kept in institutions for juvenile offenders unless their behaviour is incompatible with staying in it. When they reach the age of 21 they are transferred to institutions for adults as a general rule, but it is possible to maintain them in institutions for juvenile offenders, if the socialization process is being positive. The possibilities of transferring to an institution for adults only applies if a sanction of deprivation of liberty in close regime has been imposed (is the most serious sanction of deprivation of liberty) (article 14 LORPM).
Estonia/ Estonie: According to the Child Protection Act, if a child who has committed a criminal offence is punished, criminal punishment, particularly imprisonment, shall be used only as a measure of last resort and is to be avoided. In the case of a child who has committed a criminal offence, measures such as counselling, probation, reconciliation, curatorship, and educational programmes for the prevention of legal offences shall first be applied.
For the purpose of ensuring the need arising from international and national legislation for uniform special treatment of minors in criminal proceedings, the Chief Public Prosecutor of Estonia has provided investigative bodies and prosecutor’s offices with directions for pre-trial proceedings and recommendations for judicial proceedings in criminal matters where persons below the age of 18 participate in as victims, witnesses, suspects, or accused.
The primary purpose of penal power in the case of minors is to prevent the commission of new criminal offences, help them catch up socially, and integration. Thus, the primary purpose of affecting a minor is to educate, not to punish him or her. Requesting a prison sentence to a minor must be exceptional and deliberated by the prosecutor and it must be applied when choosing an alternative type of punishment is not justified.
In the Republic of Estonia, a person is capable of guilt if he or she is at least fourteen years old when committing the offence.
Finland/ Finlande: All stages of the criminal procedure generally seek, in principle, to expedite cases involving juvenile perpetrators. The system also generally endeavours to avoid imprisonment as a coercive method and unconditional imprisonment as a penal measure, except where otherwise absolutely required by the severity of the offence.
Section 4 of chapter 3 of the Criminal Code of Finland states that a prerequisite for criminal liability is that the perpetrator had reached the age of fifteen years at the time of the act. Sentences for offences committed by persons under the age of 18 years are determined according to a mitigated penal latitude. In such cases section 8 of chapter 6 of the Criminal Code provides that at most three-quarters of the maximum sentence of imprisonment or fine and at least the minimum sentence provided for the offence may be imposed on the perpetrator. If the offence is punishable by life imprisonment, the maximum punishment is instead twelve years of imprisonment and the minimum punishment is two years of imprisonment.
Section 9 of chapter 6 of the Criminal Code provides that a sentence of imprisonment for a fixed period not exceeding two years may be conditional (conditional imprisonment) unless the seriousness of the offence, the guilt of the perpetrator as manifested in the offence, or the criminal history of the perpetrator requires the imposition of an unconditional sentence of imprisonment. However, an unconditional sentence of imprisonment shall not be imposed for an offence committed when the perpetrator was under 18 years of age, unless this is demanded by weighty reasons.
Under chapter 6, section 10, subsection 2 of the Criminal Code, a person who has committed an offence when under 21 years of age may be subjected to supervision in order to reinforce conditional imprisonment, where this is to be deemed justified in view of the social adaptation of the perpetrator and the prevention of further offences.
Section 10a of chapter 6 of the Criminal Code provides for a special juvenile penalty, which may be imposed for an offence committed before reaching the age of 18 years if:
1. a fine is, with consideration to the seriousness of the offence, the guilt of the perpetrator manifested in the offence and the criminal history of the perpetrator, an insufficient punishment, and there are no weighty reasons requiring the imposing of an unconditional sentence of imprisonment, and 2. the imposing of a juvenile penalty is to be deemed justified in order to promote the social adaptation of the perpetrator and the prevention of new offences.
A juvenile penalty may also be imposed under the foregoing conditions if only part of the offences heard at the same time before the court were committed while under the age of 18 years.
The duration and nature of the juvenile penalty are governed by a separate Act on juvenile penalties. Section 2 of the said Act provides that the minimum duration of the juvenile penalty is four months and the maximum duration is one year.
A person sentenced to a juvenile penalty remains under supervision for the duration of the penalty. The juvenile penalty includes supervision meetings, supervised assignments and programmes to promote social interaction skills, and associated support and guidance. The juvenile penalty also includes supervised orientation to working life and working in general, except where this is considered clearly unnecessary or especially difficult to arrange.
Section 6 of chapter 1 of the Criminal Procedure Act requires the public prosecutor to prefer charges if there is a prima facie case against a suspect. An exception to this mandatory prosecution for juvenile perpetrators is noted in paragraph 2 of section 7 of chapter 1 of the said Act. whereby the public prosecutor may waive prosecution for an offence committed by a person under 18 years of age, for which a penalty no more severe than a fine or imprisonment for no longer than six months is anticipated and the offence is deemed to be the result of lack of judgment or incaution rather than heedlessness of the prohibitions and commands of the law.
According to section 13 of chapter 5 of the Criminal Procedure Act, if a defendant under 18 years of age is charged with an offence which, under the circumstances referred to in the charge, is subject to a penalty more severe than imprisonment for six months, the main hearing is to take place within 30 days of the time when the criminal case became pending. If the main hearing is cancelled, a new main hearing must take place within 30 days of the originally scheduled date for the main hearing. This ensures that criminal cases against juveniles are processed as quickly as possible.
Greece/ Grèce: In Greek legal order, the protection of child age and juvenility, the function of minors courts, their special penal jurisdiction and the establishment of the procedure “in camera” are secured by the Constitution (article 21 par.1, 3 and 96 par.3). Minors Public Prosecutors, as well as Minors Judges follow its dispositions and the special penal or procedural dispositions provided for the penal treatment of minors (mostly articles 121 to 133 of Penal Code, as those were modified at a large extent by Law 3189/2003 “Reform of minors criminal law” (Official gazette A’243/21.10.2003) and the disperse provisions of penal procedure articles concerning special dispositions on minors.
The age limit of minors’ criminal responsibility is 13 years completed, according to article 127 of Greek Penal Code and in particular:
Minors criminally irresponsible and Minors criminally responsible
Minors of 8 to 13 years of age who committed criminal acts are penally prosecuted, but the Minors Court imposes only penitentiary or remedial measures (article 126 par.2 in combination to article 122-123 of Penal Code, as replaced by article 1 of Law 3189/2003) and are considered criminally irresponsible, while the Minors Court imposes to minors who have completed the thirteenth year of age (article 126 par.3 of Penal Code) mainly penitentiary or remedial measures and only exceptionally the disposition of article 127 of Penal Code is applied, they are therefore considered criminally responsible and are condemned to confinement in a special juvenile detention establishment, if it is deemed that “penal reformation of the minor is necessary to restrain him from committing new offenses”.
Italy/ Italie: According to the Italian Constitution, the criminal action is mandatory. Not having discretion in this respect, when public prosecutors are informed of a crime they must prosecute any illegal conduct. This principle applies also to crimes committed by juveniles.
No specific guidelines are provided for, but a special procedure is provided for proceedings and criminal trials against juvenile defendants. It is partly different from the procedure concerning adult defendants:
- particular attention is paid to the personality of the young defendant;
- the main aim of the trial is to re-educate him/her;
- the social service plays a relevant role;
- the provisional arrest is not mandatory;
- preventive custody is differently regulated and specific rules are provided for all precautiory measures;
- when the defendant is found guilty, not only the conviction, but also other different outcomes are provided for trials.
The minimum age for criminal responsibility is fourteen.
Netherlands/ Pays-Bas: The general objective of Dutch juvenile criminal law and procedure is to prevent persistent offending. It is also designed to play an educative role. The Netherlands has a separate juvenile justice system that includes a large number of interventions aimed at positively influencing the behaviour of young offenders. In addition, the Code of Criminal Procedure contains a number of separate procedural safeguards related to the special approach taken to young offenders during proceedings. In brief, the dual aim of juvenile justice is to set limits and to protect.
Poland/ Pologne: Polish legislation does not provide specific powers of prosecutors in applying the general policy in cases of juveniles. The tasks of prosecutors in this area are the same as in the cases of adults offenders. However, in Polish legal system exist certain procedural differences connected with juveniles.
The general policy of the juvenile justice is more educational than repressive. In this regard, in a preamble of the Act of 26 October 1982 on proceedings in juveniles cases, emphasis is laid on: the desire to prevent demoralization and juvenile delinquency and creating conditions for the return to normal life to juveniles who have fallen in conflict with the law or the principles of conduct in the community, and the desire to strengthening the functions of care and education and the responsibility of families for the upbringing of juveniles.
According to article 10 of Polish Penal Code any person, who commits a prohibited act after having attained the age of 17 years shall be liable under the provisions of this Code.
However, a juvenile, who after attaining the age of 15 years shall commit the prohibited act specified in the following articles of Polish Penal Code may be liable under the provisions specified in this Code, under certain conditions - if the circumstances of the case and the mental state of development of the perpetrator, his characteristics and personal situation warrant it, and especially when previously applied educational or corrective measures have proved ineffective. Above mentioned acts are specified in the following articles of the Penal Code:
· Article 134: attempt on the life of the President of the Republic of Poland
· Article 148. § 1, 2 or 3: homicide, murder
· Article 156 § 1 or 3: severe detriment to health
· Article 163 § 1 or 3: causing a dangerous event
· Article 166: high seas and air piracy
· Article 173 § 1 or 3: causing a disaster in traffic
· Article 197 § 3: rape with another person (group)
· Article 252 § 1 or 2: taking of hostages
· Article 280: robbery
In these cases (juvenile under 15 years), the penalty imposed may not exceed two-thirds of the statutory maximum penalty for the offence imputed to the perpetrator. Additionally, the court may also apply an extraordinary mitigation of punishment.
According to the article 10 para. 4 of the Penal Code (PC), when the circumstances of the case and the mental state of development of the perpetrator, his characteristics and personal situation warrant it, with regard to the perpetrator who commits a prohibited act after having attained 17 years of age but before having reached the age of 18 years, the court shall, instead of a penalty, adopt educational, therapeutic, or corrective measures prescribed for juveniles.
The article 54 of the Penal Code provides that, by imposing a penalty on a juvenile or a young offender, the court shall be targeted primarily to educate the offender. However, that in view of the perpetrator, who at the time of the offense has not completed 18 years of age, not imposes a penalty of life imprisonment. Under Polish Penal Code a penalty of the deprivation of liberty for life shall not be imposed on the perpetrator who was under 18 at the time of the commission of the offence.
According to the Article 72 para. 1 point 4 of the Penal Code, suspending the execution of a penalty, the court may require the convicted person to do a job, to study or training for a profession, which seems to be a measure which should be used in relation to juveniles and young offenders.
Moreover, in the case of suspension of imprisonment for juvenile offender the supervision is mandatory and is carried out by a probation officer or a person of public trust, association, or community organisation whose activities include educational care, preventing the demoralisation of or providing assistance to sentenced persons (Article 73 para. 2 PC).
The Act on proceedings in juveniles cases, provides that family court may:
1) give a warning;
2) oblige a juvenile to specified conduct, particularly to redressing the damage, to perform specific jobs or benefits to the victim or the community, to apologize to the victim, to study or work, to participate in relevant activities of an educational, therapeutic, or training nature, to refrain from staying in certain environments or locations, or to refrain from using alcohol or other means to enter the state of intoxication,
3) establish supervision responsibility of the parents or guardian,
4) establish a supervision of youth organization, or other social organization, the workplace or a trustworthy person;
5) use the guardian supervision;
6) refer to guardian’s center, as well as social organizations or institutions working with children of a educational, therapeutic, or training character, after consultation with the organization or institution;
7) decide upon a driving ban;
8) declare the forfeiture of goods obtained in connection with a criminal offense;
9) decide upon a placement with a foster family, in a youth educational center or youth center of sociotherapy;
10) decide upon a placement in correctional center for juveniles; (detention center for juveniles);
11) take other measures reserved to the family court, as well as to apply the measures provided for in the Family and Custodianship Code.
Slovak Republic/ République Slovaque: Juvenile justice in the Slovak Republic is not governed and regulated under any separate legal rules and it does not follow any specific guidelines, even after the reform of the Criminal Code and Criminal Procedure Code in 2005; it is still incorporated in these general criminal Codes. However, both aforementioned Codes take a due account of particularities of proceedings involving juvenile offenders. Relevant substantive provisions can be found in Chapter IV of the General Part of the Criminal Code under the heading “Specific Procedures for Dealing with Juvenile Offenders”, and particularities of procedures involving juvenile offenders are governed in Section Three of Chapter VII, Subsection II of the Criminal Procedure Code under the heading “Prosecution of Juvenile Offenders”.
Juvenile offenders can be divided into three categories based on their age:
§ Children, who at the time of the commission of the offence have not attained the age of 14, and in cases of sexual abuse under Sec. 201 of the Criminal Code the age of 15. These children are not liable to criminal prosecution and if they act in a way otherwise classified as a criminal offence, punitive-educational protective orders may be imposed on them under a court ruling [Sec. 37(2) and (3) of Act No. 36/2005 (Family Act) as amended], or under a ruling made by the child-welfare agency and social agency [Sec. 12(1) of Act No. . Reprimand]305/2005 on the Child Welfare and Social Agencies as amended addressed to children or their parents, supervision orders, orders on placing a child in the temporary care of a foster family other than his own or placing a child in the temporary care of a residential facility as the result of problems or challenges that are taking place within the birth family, etc. may also be initiated by the prosecutor to promote the child´s legitimate interests; the need for taking these measures must be duly considered and a due account must be taken of the child´s personality, external environment, his family background, as well as of the nature of the child´s actions which are otherwise classified as a criminal offence. Subject to stringent requirements prescribed by law the child may be imposed a mandatory educational or medical treatment order by the civil court; these orders are enforced in specialised educational centres, in professional foster families or in in-patient health care centres. The proposal to impose a mandatory educational or medical treatment order is usually put forward by the prosecutor.
§ Juvenile offenders who at the time the commission of the offence have reached the age of 14 but who are below the age of 18. The only change in conditions applies to the sexual abuse offence committed by offenders aged between 15 to 18; criminal liability of offenders aged between 14 – 15 years is considered in the context of their individual mental and moral maturity. However, to classify actions of juvenile offenders regardless of their age as criminal misdemeanours, juvenile offenders´ actions must be – unlike adults´ actions – exerted with considerable gravity. This, of course, does not apply to more serious offences and felonies. Unlike in the case of adult offenders, there are shorter time limits for prosecuting juvenile crimes, a wider range of non-sentencing options, more alternative and non-repressive sentencing options, but also a narrower range of sentencing options. Custodial sentences imposed on juvenile offenders below the age of 18 are served in juvenile correctional facilities.
§ Persons approaching the young adult age, i.e. persons who have reached the age of 18 but have not reached the age of 21. The fact that the offence was committed by a young adult offender may be a mitigating circumstance under Sec. 36 item d) of the Criminal Code. There are no other changes in conditions or differences arising under the Criminal Code, which would apply to the criminal liability of juvenile offenders and adults offenders.
Criminal Proceedings Involving Juveniles
Particularities of criminal proceedings [Sec. 336 – Sec. 347 of the Criminal Procedure Code) are displayed mainly in the following:
§ Juvenile offender must be represented by a defence counsel from the moment of formal accusation being brought against him until the final and conclusive disposition of the case or matter at issue
§ Involvement of the state youth welfare agency in criminal proceedings
§ Defence counsels may bring appeals against court orders or resolutions to the benefit of juvenile offenders on their behalf; the state youth welfare agency may bring appeals even without the juvenile offender´s consent, or even against his will
§ It is necessary to ascertain and assess the level of the juvenile´s mental and moral maturity and his family or social background
§ Juveniles below the age of 15 must undergo a mental health assessment
§ Juvenile offenders may be taken into pre-trial custody (detention) as a last resort only on condition that the purpose of the pre-trial custody cannot be achieved in any other way and if there are no other less-restrictive alternatives
§ Possibility to refer and forward the case to be tried in a court other than a local court within the jurisdiction of which the juvenile offender resides, if such referral is in the juvenile offender´s best interest
§ Main hearing and public plea-bargaining is not allowed in the absence of the juvenile offender
§ Prosecutor must always be present also at public hearings
§ Joint prosecution of the juvenile offender and the adult offender above the age of 18 is admissible only in exceptional cases
§ If it is to the benefit of the juvenile offender, the hearing may be held without the presence of the public.
The above-mentioned principles and guidelines contained in the Criminal Code and in the Criminal Procedure Code must be followed and observed also by prosecutors. There are no specific policies, which would apply to prosecutors within the juvenile justice system.
Romania/ Roumanie: Yes. As a body engaged in carrying out the justice for juveniles, one of the prosecutors’ duties during the criminal investigation stage is enforcing a derogatory penal treatment and a milder penalizing regime foreseen by the criminal law for the juvenile offenders.
According to article 99, paragraphs 1 and 2 of the Criminal Code, the minimum age for the criminal liability of a minor is 14 years old, without exceptions, the lack of discernment is legally purely presumed, and 16 years old, if the existence of discernment is not proved, which is presumed until proved otherwise.
The prevailing nature of the policy is educational. Thus, the law provides that against the minors who committed a criminal deed and are criminally liable, an educational measure can be enforced or a punishment can be applied. When selecting the sanction the following factors will be given consideration: the degree of social risk of the committed offence, the physical state, the intellectual and moral development, the minor’s behavior, the conditions in which he /she was raised and in which he/she lived and any other elements that could characterize the minor’s person.
These elements are also established by means of the evaluation report.
Thus, according to art. 482 of the Law no. 29/1968 – Criminal Procedure Code:
In the cases dealing with juvenile accused or defendants, the prosecutor controlling or, depending on the case, conducting the prosecution may require, when he/she deems it necessary, that the probation service attached to the tribunal in the territorial circumscription of which the minor resides do the evaluation report, under the law.
In the cases dealing with juvenile defendants, the court of law has the obligation to order the accomplishment of the evaluation report by the probation service attached to the tribunal in the territorial circumscription of which the minor resides, under the law, with the exception of the case in which the accomplishment of the evaluation report was requested during the criminal prosecution, according to the provisions under par. 1, situation in which the court’s requiring of the report is optional.
The evaluation report is accomplished according to the structure and content foreseen by the special legislation regulating the activity of the probation services.
The evaluation report was introduced by Law no. 356 of July 21st 2006 so as to modify and complete the Criminal Procedure Code, as well as to modify other laws. Heretofore, the same text (art. 482) stipulated the fulfillment of a social enquiry, “consisting in collecting data on the regular conduct of the minor, on his/her physical and mental condition, on his/her antecedents, on the conditions in which he/she was raised or in which he/she has lived, on the manner in which the parents, the tutor or the person in whose care the minor is perform their duties towards the latter and, generally speaking, on any elements that may lead to adopting a measure or to enforcing a sanction toward the minor.
The social enquiry is done by persons appointed by the tutelary authority of the local council in the territorial circumscription of which the minor resides.”
The evaluation report is a more qualified instrument than the social enquiry.
The punishment shall apply only when it is considered that an educational measure is not sufficient in order for the minor to turn (according to article 100 of the Criminal Code). In this case, the limits of the punishments provided by the law for the committed offence shall be reduced to half (according to article 109 of the Criminal Code). After the reduction, under no circumstances shall the minimum of the punishment exceed five years.
When for the committed offence, the law provides for the punishment of life detention, the imprisonment between 5 and 20 years shall be applied to the minor.
Complementary punishments shall not be applied to the minor.
The convictions pronounced for offences committed while being a minor shall not draw incapacities or termination of rights, nor the recurrence state.
In case of the conditional suspension of the punishment execution applied to the minor, the trying period shall consist in the duration of the prison punishment adding up a time period between 6 months and 2 years, set by the court. The trying period is 6 months, if the punishment applied is the fine.
Therefore, the enforcement of a punishment is an exceptional and subsidiary measure to the enforcement of an educational measure. There is no minimum legal age under which the prison punishment shall not be allowed for a child. The judge shall select the sanction, and the assessment shall not be subjective, but based on the selection criteria foreseen by the law: the physical state, the intellectual and moral development and so on.
The educational measures that can be applied to the minor are provided by article 101 of the Criminal Code:
The educational measure of freedom under observation consists in freeing the minor during one year, under a special supervision.
The measures foreseen by article 101 letters c) and d) are taken for an indefinite period, but they can last only until the age of 18 years old.
The measure of the confinement into a medical-educational institute must be lifted immediately after the cause that imposed this measure has ceased. The court, ordering that the measure be lifted, may, if necessary, apply the minor the measure of confinement into a reeducation center. The moment when the minor reaches full age, the court may order the prorogation of the confinement over a period of 2 years, if it is necessary for the achievement of the confinement purpose.
Slovenia/ Slovénie: In Slovenia there are no specific guidelines for dealing with criminal cases involving juveniles as perpetrators, victims or witnesses of crime. On the other hand we have general policy concerning juvenile justice. First of all the state prosecutors in our country have the obligation to deal with this type of cases applying the principle of priority. They have to work on these cases without undue delay. The character of our criminal proceedings is not only criminal repression. We primarily try to find out relevant circumstances in witch the offence was done and establishing the personality and living conditions of juvenile perpetrators. One of the most important purposes is also to choose the right criminal sanction.
The minimal age regarding criminal responsibility in Slovenia is 14 years, but we have the division into younger juveniles (years between 14 and 16) and older juveniles (years between 16 and 18). The prison sentence is applicable only for older juveniles and only if prescribed criminal sanction for the offence is 5 or more years of imprisonment.
Sweden/ Suède: In Sweden there is a special law (1964:167) concerning juvenile perpetrators. This law deals with persons who have not reached the age of twenty one. It is quite an extensive law that cannot be referred to in its entirety. The idea of the law, however, is to on one hand protect the juveniles from interfering with criminals and to undertake the hard conditions in a prison and on the other hand promote them to a descent future life free from criminality.
The minimum age for criminal responsibility in Sweden is 15 years of age.
There are three limits for imprisonment of a young person. A person should not be imprisoned before 21 years of age. Concerning very serious crimes it is possible to imprison a person who is between 18 and 21. Between 15 and 18 it should be extremely rare with imprisonment and it can only happen in very, very, special cases. The Swedish Penal Code Chapter 30, section 5 says: If a crime has been committed by a person who has not attained the age of eighteen, the court may impose imprisonment only if there are extraordinary reasons for so doing. It follows from the provisions of Chapter 31, Section 1a, that “the court shall, in the first place, sentence to closed juvenile care if a person who has attained the age of eighteen but not twenty-one has committed a crime, the court may impose imprisonment only if, in view of the penal value of the crime or other special reasons, this course of action is justified”.
Chapter 32 section 1 deals with committal to special care for persons who are under the age of twenty one and can be sentenced to treatment or other measure under the Social Services Act or the Care of Young Persons Special Provisions Act.
Chapter 32 section 2 says that a person who is under twenty one may be sentenced to youth service if the juvenile consents and the sentence is appropriate to his or her person and the circumstances in the specific case. A person who is older than eighteen may be sentenced to youth service only if there are reasonable grounds for it.
Turkey/ Turquie: - According the Article 61. of the Turkish Constitution the state has to take all kinds of measures for social resettlement of children in need of protection and to achieve these aims the state has to establish the necessary organizations or facilities.
The public prosecutor has according the articles 18, 19 and 20 Law on the Establishing, Duties and Competences of Courts of First Instance and Regional Courts in the Ordinary Judiciary (Law Nr. 5235) the obligation a) to investigate if there is a need to file a public trial or not b) to follow up the prosecutions on behalf of the public, to attend and if necessary appeal them, according the rules settled in laws c) to perform the related procedures for the execution of the court decisions and d) to perform the juridical and administrative tasks e) to carry out other duties given by laws
The Juvenile Protection Law (No: 5395 ) which has been adopted on 3th July 2005 sets up the general policies and rules which the public prosecutor has to comply with during his/her activities.
The law defines in Article 1 its purpose as “to regulate the procedures and principles with regard to protecting juveniles who are in need of protection or who are pushed to crime, and ensuring their rights and well-being”.
In order to protect the rights of juveniles the law uses the expression “children who are pushed to crime”.
The public prosecutors must as regards the Article 4 of the law mentioned above observe by their actions the following fundamental principles:
a) safeguarding juveniles’ right to life, development, protection and participation,
b) safeguarding the interest and well-being of juveniles,
c) no discrimination towards the juvenile or his/her family for any reason whatsoever,
d) ensuring the participation of the juvenile and his/her family in the process via keeping them informed,
e) cooperation between the juvenile, his/her family, the related authorities, public institutions and non-governmental organizations,
f) following a procedure that is based on human rights, fair, effective and swift,
g) employing special care appropriate to the situation of the juvenile throughout the investigation or prosecution process,
h) supporting the juvenile in developing his/her personality, social responsibility and education as appropriate for his/her age and development, when taking and implementing the decisions,
i) Penalty of imprisonment and measures that restrict liberty shall be the last resort for juveniles,
j) When deciding measures, caring at institution and keeping at institution shall be considered as the last resort; when taking and implementing the decisions, ensuring that social responsibility is shared,
k) Keeping juveniles separate from adults at the institutions where they are cared for and looked after and where the court decisions are implemented,
l) Taking measures to prevent others from detecting the identity of the juvenile in transactions related to juveniles, trials and when carrying out the decisions.”
- The prevailing character of the policy is protecting and educative rather than repressive.
- This can be understood from Article 5/1 of the law which uses the wording “before all else” by the separating of the measures foreseen in the law:
- “Protective and supportive measures are measures to be taken in terms of consulting, education, care, health and shelter, for the purpose of protecting the juvenile within his/her own family environment before all else.”
The protective and supportive measures anticipated in the law are as follows:
a) Consultancy measure, is a measure oriented to providing guidance on child rearing to those who are responsible for the care of the juvenile, and guidance to juveniles on solving problems related to their education and development;
b) Education/training measure, is a measure oriented to ensure that the juvenile attends an education institution as a day-student or boarding student, attends a vocational training course or arts and crafts course, or is deployed with a master of profession or at a workplace belonging to the public or private sector for the purpose of acquiring a job or a profession,
c) Care measure, is a measure to make governmental or private care centre services or foster family services available for the juvenile or place the juvenile under the care of such institutions, in the event that the person responsible for the care of the juvenile fails to fulfill his/her care duties due to any reason,
d) Health measure, is a measure to ensure necessary temporary or continuous medical care and rehabilitation for treatment and protection of the juvenile’s physical and physiological health, and treatment and therapy for juveniles who use addictive substances,
e) Shelter measure is a measure to provide a suitable shelter for those who have children but do not have a place to live, or to pregnant women whose lives are in danger.
The identification and address information of those about whom a shelter measure as defined in paragraph 1 subparagraph (e) is being implemented shall be kept confidential if they so demand.
If it is established that the juvenile is not under any danger, or if it is understood that, although the juvenile is in danger, such danger can be eliminated by supporting the juvenile’s parent or guardian or the person who is responsible for the juvenile’s care, then the juvenile shall be delivered to these persons. For the purposes of this paragraph, one of the measures specified in paragraph one can also be decided with regard to the juvenile.
Beyond that the public prosecutor has to comply with the rules set in article 30 of the Juvenile Protection Law (No: 5395:
- to carry out the investigation procedures related to juveniles pushed to crime,
- to ensure that necessary measures are taken without any delay, in cases which require measures to be taken with regard to juveniles,
- to work in cooperation with the relevant public institutions and organizations and non-governmental organizations for the purpose of providing the necessary support services to juveniles who need help, education, employment or shelter, from among juveniles who need protection, who are victims of a crime or who are pushed to delinquency; and to notify such and similar cases to the authorized institutions and organizations, and
- to carry out the duties specified in this Law and in other laws. “
But “ in cases where delay is considered to be risky, these duties may also be carried out by Public prosecutors who are not assigned to juvenile bureaus.”
- The age of criminal responsibility is settled in article 31 of the Turkish Criminal Code.
According the law;
· Minors under the age of twelve are exempt from criminal liability.
· While such minors cannot be prosecuted, security measures in respect of minors may be imposed.
· Where a minor is older than twelve, but younger than fifteen, at the time of an offence, and he is either incapable of appreciating the legal meaning and consequences of his act or his capability to control his behavior is underdeveloped then he shall be exempt from criminal liability.
However, such minors may be subject to security measures specific to children.
· Where the minor has the capability to comprehend the legal meaning and result of the act and to control his behaviors in respective of his act, for offences requiring a penalty of aggravated life imprisonment, a term of twelve to fifteen years of imprisonment shall be imposed and for offences that require a penalty of life imprisonment, a term of nine to eleven years imprisonment shall be imposed. Otherwise the penalty to be imposed shall be reduced by half, save for the fact that for each act such penalty shall not exceed seven years.
· Where a minor is older than fifteen but younger than eighteen years at the time of the offence then for crimes that require a penalty of aggravated life imprisonment a term of eighteen to twenty four years of imprisonment shall be imposed and for offences that require a penalty of life imprisonment twelve to fifteen years of imprisonment shall be imposed. Otherwise the penalty to be imposed shall be reduced by one-third, save for the fact that the penalty for each act shall not exceed twelve years.
Therefore it is possible to consider that in Turkish criminal law the responsibility ages of juveniles is separated in two parts: From the age of 12 to 15, and 15 to 18.
But a different criterion exists together with the age of responsibility for the minors between 12 and 15.
It has first to be checked out by a medical attest if the minor older than 12 but younger than 15 “is incapable of appreciating the legal meaning and consequences of his act” or “his capability to control his behavior is underdeveloped”.
If it is clear that the minor older than 12 but younger than 15 has the capability to comprehend the legal meaning and result of the act and to control his behaviors in respective of his act he benefits from a more reduction of the penalty than the minors between 15 and 18. For the minor older than 12 but younger than 15 a maximum limit of 7 years imprisonment too is foreseen for each crime.
This criterion mentioned above as regards the mental capabilities of the minor does not apply to the minors between the ages 15 and 18. Their mental capabilities fall within the general clauses of the law foreseen for mental disorders. But the special measurements foreseen in Juvenile Protection Law has to be applied them too. For the minor older than 15 but younger than 18 a maximum limit of 12 years imprisonment is foreseen for each crime commited.
· However the provisions of the Turkish Criminal Code which relate to minors over fifteen years of age but under eighteen of age has to be applied to deaf and mute persons who are over eighteen years of age but under twenty years of age.
- According Article 45 of the Turkish Criminal Code the penalties foreseen for criminal offences are imprisonment and judicial fines.
When we consider the Article 31 of the Turkish Criminal Code mentioned above we may understand that the children under 12 cannot be imprisoned even they should have committed a crime. But an investigation as regards their crimes can be performed. And special measurements mentioned in the Juvenile Protection Law (No: 5395) could be ordered for them too.
- According the Article 21 of the Juvenile Protection Law (No: 5395) there is a prohibition of arrest for children from the age 12 to 15 if the crime they committed does not shall request an imprisonment more than 5 years.
England and Wales/ Angleterre et le pays de Galle: The Code for Crown Prosecutors, issued by the Director of Public Prosecutions, under section 10 Prosecution of Offences Act 1985 is the principal guidance that prosecutors must apply when making decisions about all prosecutions, whether of youths or adults. The Code sets out the test that must be applied to all decisions to prosecute. The first stage of the test is consideration of the evidence. A prosecutor must be satisfied that there is enough evidence to provide a “realistic prospect of conviction” before a case can pass to the second stage. If the case does not pass the evidential stage it must not go ahead no matter how important or serious it may be.
The second stage of the test is the public interest which must be considered in every case where there is sufficient evidence to provide a realistic prospect of conviction. Prosecutors must balance factors for and against prosecution carefully and fairly. Paragraph 8.8 of the Code requires Crown Prosecutors to consider the interests of a youth when deciding whether it is in the public interest to prosecute. However, a prosecution should not be avoided only because a defendant is under 18. The seriousness of the offence and past offending behaviour are also relevant considerations.
Paragraph 8.9 of the Code explains that youth cases are usually only referred to the Crown Prosecution Service for prosecution if the youth has already received a reprimand and warning (out of court formal diversionary measures administered by the police.) This is because reprimands and warnings are intended to prevent offending and the fact that a further offence has occurred indicates that attempts to divert the youth from court have not been effective. The public interest will usually require a prosecution in such cases. Sometimes a first offence is too serious for diversion and the public interest will require a prosecution. A youth must admit an offence before he can be eligible for a reprimand or warning. If he denies the offence, the public interest may require a prosecution
The Code is supplemented by legal guidance on youth offenders which is published on the Crown Prosecution Service website. The guidance sets out the key considerations that apply in all youth cases, namely:
· The welfare principle ( section 44 Children and Young Persons Act 1933) that requires courts to have regard to the welfare of all children and young people appearing before the court, whether as defendants, victims or witnesses;
· The principal aim of the youth justice system (section 37 Crime and Disorder Act 1998) which is to prevent offending;
· The European Convention on Human Rights;
· The United Nations Convention on the Rights of the Child 1989;
· The United Nations Minimum Standards for Juvenile Justice (the Beijing Rules) 1985.
It seeks to strike a balance between the interests of a young person who has less insight into the causes and consequences of his offending behaviour than an adult and the need to protect the public from harm caused through further offending.
The guidance applies to all youth offenders who are those aged 10 to 17 inclusive. The age of criminal responsibility was set at 10 by Parliament (Children and Young Persons Act 1963.)
The youth court has no power to sentence a child of 10 or 11 to custody. It can sentence youths aged 15, 16 and 17 to a custodial sentence (Detention and Training Order) of up to 24 months. It can also pass this sentence on youths aged 12, 13 and 14 if they are “persistent.” This is likely to mean that the youth has been convicted of or has admitted to the police that he has committed imprisonable offences on at least 3 occasions in the past 12 months.
Youths can be tried in the Crown Court, where they are jointly tried with an adult, or where the alleged offence is so serious that a lengthy period of detention may be appropriate. These offences include rape, residential burglary, wounding with intent to commit grievous bodily harm. If the youth is convicted of on of these offences by a jury, the Crown Court can pass a sentence that does not exceed the maximum that could be passed on a person aged 21 or over. In practice, a youth will usually receive a shorter sentence of about half to three quarters of the adult sentence.
Youths who are sentenced to custody may be detained in a secure children’s home ( run either by the local authority or a private company), a secure training centre ( run by private companies, or , in the case of older youths in a young offender institution or prison. In the latter case, those under the age of 18 are accommodated in a separate building from those aged 18 to 21.
Scotland/ Ecosse: In Scotland the decision on whether to prosecute is within the discretion of the public prosecutor (in most cases the Procurators Fiscal). Guidance and policy in terms of the decision making process in respect of deciding whether to prosecute is not enshrined in any legislation but rather is contained in guidance issued by the Law Officers and other officials in the Crown Office and Procurator Fiscal Service. When considering whether to prosecute the prosecutor must be satisfied that there is sufficient admissible evidence in the case and that a prosecution would be in the public interest.
In Scotland the age of criminal responsibility is set at eight years old, no child under this age can be guilty of any offence.1
Where a child is under the age of sixteen years, there is a presumption in favour of such cases being dealt with by the Children’s Reporter2 and criminal proceedings should only be taken where there are compelling reasons in the public interest to do so.
There are various alternatives to prosecution which may also be applicable in each individual case based on the circumstances.3
Ukraine: The criminal law secures better criminal protection of juveniles and provides for some specific procedures for bringing juveniles to the criminal liability, assignment of punishment, relief from punishment and completion of sentences with due regard for their biological, psychological and social features. Such position relies on the international legal acts, in particular, the Declaration of the Rights of the Child dd. November 20, 1959 saying that “a child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection” (Preamble).
Criminal proceedings of juvenile crimes are based on the general principles of the criminal law and the criminal procedure. However, they have some peculiarities dealing with the age limitation for bringing juveniles to criminal responsibility, limited types and terms of sentences, application of other measures not related with the criminal penalties (compulsory measures of educational character), circumstances in proof, the number and status of persons taking part in the criminal proceedings etc.
In general, persons who have reached the age of 16 before the commitment of a criminal offense shall be criminally liable (paragraph 1 of Article 22 of the Criminal Code of Ukraine), and persons who have committed especially grave crimes (a murder; an attempted killing of a statesperson or public figure, a law enforcement officer etc.; an intended grievous bodily injury; an intended bodily injury of medium gravity; sabotage; gansterism; an act of terrorism; hostage taking; rape; violent unnatural satisfaction of sexual desire; theft; robbery; brigandage; extortion; willful destruction or endamagement of property; endamagement of communication routes and means of transportation; theft or seizure of the railroad rolling stock, an air-, sea- or a river-craft; misappropriation of a vehicle; and hooliganism) shall be criminally liable after reaching 14 years (paragraph 2 of Article 22 of the Criminal Code of Ukraine).
The necessity to single out special provisions on the criminal liability of juveniles is predetermined by the principles of fairness and humanism, as well as the objective of their re-socialization.
The courts adopt measures of educational character against minors in the age under 11, who have committed socially dangerous acts meeting criteria of a crime, until an offender reaches the official age of criminal responsibility, as provided for by Article 105 of the Criminal Code of Ukraine (warning; restriction of leisure time and special requirements to a minor's conduct; placing a minor under supervision of his/her parents or foster parents, or school teachers or colleagues upon their consent, or other individuals at their request; obliging a minor, who has attained 15 years of age and possesses any property, money or has any earnings, to compensate any pecuniary damages; placing a minor in a special educational and correctional institution for children and teenagers until the minor's complete correction but for a term not exceeding three years.)
Subject to paragraph 1 of Article 97 of the Criminal Code of Ukraine, a minor under 18 who has committed a crime of minor or medium gravity for the first time, may be discharged from criminal liability, provided that his/her reformation is possible without punishment. In such cases, a court shall impose compulsory reformation measures upon the minor.
Some general provisions of the Criminal Code of Ukraine are aimed at strengthening criminal protection of children who have committed crimes and victimized children.
Thus, sub-paragraph 3 of paragraph 1 of Article 66 of the Criminal Code of Ukraine defines commitment of an offense by a minor as the attenuating circumstance. At the same time, commitment of an offense against a minor (sub-paragraph 6 of paragraph 1 of Article 67 of the Criminal Code of Ukraine) or the commitment of an offense through the use of a minor (sub-paragraph 9 of paragraph 1 of Article 67 of the Criminal Code of Ukraine) are defined as the aggravating circumstances.
The section of the Criminal Code of Ukraine devoted to the specific features of criminal liability and punishment of minors contains the great number of provisions on crimes against minors (or some categories of minors) or crimes with aggravated liability if committed against minors.
Article 102 of Criminal Code of Ukraine establishes some limitations on punishment of imprisonment imposed on persons who were under 18 years of age at the time of commitment of an offence. Thus, imprisonment shall be imposed on a minor who committed:
a repeated minor offence - for a term exceeding two years;
a medium grave offence - for a term exceeding four years;
a grave offence - for a term exceeding seven years;
a special grave offence - for a term exceeding ten years.
a special grave offence involving a murder - for a term exceeding fifteen years.
In addition, imprisonment may not be imposed on a minor who committed a minor offence for the first time
Armenia/ Arménie: There is no framework law on juvenile justice, however, and the Chapters of the Criminal Code and the Code of Criminal Procedure on juvenile suspects, accused and offenders are short and do not incorporate the basic principles set forth in Articles 37 and 40 of the Convention on the Rights of the Child. Legislation on the treatment of prisoners contains some provisions that are incompatible with international standards, such as those authorising solitary confinement of juveniles as a punishment for 5 or 10 days.
The Rights of the Child Act contains two articles on juvenile justice. The Code of Criminal Procedure and the Criminal Code adopted in 1998 and 2003, respectively, made important changes on the law concerning juvenile offenders. Some additional improvements were made in amendments to the Code of Criminal Procedure adopted in 2001 and 2006, and still others are under consideration at this writing.
The minimum age for the prosecution of juveniles is 14, for more than 20 serious offences. Persons 16 years of age may be prosecuted for any offence recognized by the Criminal Code. Juveniles who have reached these age limits do not have “criminal liability” if they are “not able to understand the nature and significance of one’s actions or to control one’s actions” due to “retarded mental development.”
No law expressly and specifically regulates the treatment of children under the minimum age for prosecution who become involved in criminal activity, that is, any child under 14 involved in any offence recognised by the Criminal Code, and those aged 14 or 15 who participate in unlisted offences. In practice, they are assimilated to children who commit “anti-social behaviour”. One article of the Law on Education refers to the treatment of such children.
Portugal: voir la fin du document
Ireland/ Irlande: Introduction to Juvenile Justice System in Ireland
The Office of the Director of Public Prosecutions is responsible for the prosecution of offences in Ireland. The Office is separate and independent in the performance of its function and so is independent from the government, the judiciary, and the Irish police, An Garda Síochána. The Office has published guidelines in a manual entitled, Guidelines for Prosecutors, a copy of which is attached. In these guidelines the Office sets out its policy in relation to juvenile justice. It is noted in Chapter 5 that:
The long term damage which can be done to a child because of an encounter with the criminal law early in his or her life should not be underestimated and prosecution must be regarded as a severe measure with significant implications for the future development of the child concerned. Whilst each situation must be assessed on its merits, frequently there will be a stronger case for dealing with the situation by some means other than prosecution, such as by way of caution. On the other hand, the seriousness of the alleged offence, harm to any victim and the conduct, character and general circumstances of the child concerned may require that prosecution be undertaken.
This statement reflects the general attitude to juvenile justice in Ireland and not just that of the Prosecutor. As a result of this emphasis on prosecution as a last resort, the Office does not have a major role in relation to juvenile justice in Ireland, as it will only be engaged in the most serious cases. The Gardaí have a more prominent role in this area. Where a decision is taken to prosecute, this will generally be dealt with summarily by the Gardaí, acting on behalf of the Office of the DPP, in the Children’s Court.
The Gardaí administer a scheme called the Juvenile Diversion Programme which aims to keep child offenders out of the formal prosecution system. The Programme was only put on a statutory basis in 2001 under the Children Act 2001; however, diversion projects and caution schemes had been in operation for many years before this. Under the terms of the 2001 Act in order to be eligible for the programme a child must accept responsibility for their criminal or anti-social behaviour. The child is then cautioned and, where appropriate, placed under the supervision of a juvenile liaison officer and possibly involved in a conference attended by family members and other concerned persons. The decision as to whether a child should be admitted to the programme is taken by the Director of the National Juvenile Office upon receipt of a report from a juvenile liaison officer, who is a member of An Garda Síochána specially trained to deal with young offenders. The most recent statistics in relation to the operation of the Programme outline that in 2007 there were 21,941 individuals referred to the Programme: 16,753 of these individuals were admitted to the scheme, while 3,208 were deemed unsuitable for inclusion, 1,190 required no action and 790 had their cases pending at the time the statistics were being compiled.
It should be noted at the outset that under Irish law a child is generally defined as a person under the age of 18. The age of criminal responsibility under Irish law is 12, unless the offence is one of murder, manslaughter or certain sexual offences, in which case a child of 10 or 11 may be charged.4 The provisions in relation to sentencing are discussed below at question 4.
Russian Federation/ Fédération de Russie: Criminal policy in cases against juveniles — in accordance with Article 87, Part 1, of the Criminal Code of the Russian Federation, juveniles are persons aged 14 (fourteen) to 18 (eighteen) years — is carried out in the Russian Federation pursuant to the requirements set out in the Constitution of the Russian Federation, criminal law and law of criminal procedure, and other statutory instruments regulating legal relations in this sphere. The Code of Criminal Procedure of the Russian Federation contains, in addition to general provisions that apply to juvenile offenders, special sections and a separate chapter that regulates criminal proceedings in juvenile cases (Chapter 50 of the Code of Criminal Procedure of the Russian Federation). Thus, in criminal cases where offences were perpetrated by juveniles, their legal representatives are mandatorily engaged in the case, which are admitted to participation in the case for the moment of the first questioning of the juvenile in the capacity of the suspected or accused person, as well as summoned to the court session (Article 48 of the Code of Criminal Procedure of the Russian Federation). A legal representative may be dismissed from participating in the criminal case if there are grounds to believe that his actions prejudice the interests of the suspected or accused juvenile. In this case, another legal representative of the suspected or accused juvenile is admitted to participation in the criminal case (Article 426 of the Code of Criminal Procedure of the Russian Federation). The participation of a defence lawyer is also held mandatory (Article 51 of the Code of Criminal Procedure of the Russian Federation). When preliminary investigation and judicial proceedings are carried out in a case involving a crime committed by a juvenile offender, it is mandatory to establish the following data: the age of the juvenile; the conditions of the juvenile’s life and education, the level of his/her mental development and other specific features of his/her personality; the impact exerted upon the juvenile by older persons (Article 421 of the Code of Criminal Procedure of the Russian Federation). In the presence of information on a retardation in mental development which is not related to a mental disorder, it is also established whether the juvenile could be fully aware of the actual character and social danger of his/her actions (or omission of actions), or to control them. A criminal case against a juvenile who participated in the perpetration of a offence together with an adult, is severed into a separate case (Article 422 of the Code of Criminal Procedure of the Russian Federation). The duration of uninterrupted questioning of a suspected or accused juvenile may not exceed 2 (two) hours, the total duration of questioning being not more than 4 (four) hours per day. It is mandatory that an educationist or psychologist take part in the questioning of a suspected or accused juvenile who has not reached the age of 16 (sixteen), or has reached the said age but suffers from a mental disorder or has retarded mental development (Article 425 of the Code of Criminal Procedure of the Russian Federation). If it is established in the course of preliminary investigation in a criminal case involving an offence of minor or average gravity, that the correction of the accused juvenile can be achieved without administering punishment, then the investigator, on consent of the head of the investigation authority, as well as the inquiry officer, on consent of the prosecutor, has the right to issue a decision on terminating the prosecution and submitting a motion to the court to impose a coercive measure of educational influence provided in Article 90, Part 2, of the Criminal Code of the Russian Federation (Article 427 of the Code of Criminal Procedure of the Russian Federation), with the exception of cases where the suspected or accused juvenile, or his/her legal representative object to it. The court considers the application and the case materials in accordance to the procedure set out in Article 108 of the Code of Criminal Procedure of the Russian Federation, grants or rejects the motion, whereon an appropriate resolution is passed. Also, if in the course of consideration of a case concerning an offence of minor or average gravity the court becomes convinced that the accused juvenile can be corrected without administering criminal sanctions, the court is entitled to free him/her from criminal liability, coercive measures of educational influence being imposed (Article 90 of the Criminal Code of the Russian Federation and Article 431 of the Code of Criminal Procedure of the Russian Federation). A juvenile can be freed from punishment (Article 92 of the Criminal Code of the Russian Federation) under the following circumstances:
- release from punishment with the imposition of coercive measures of educational influence;
- placement in a special teaching and educational institution;
- conditional early release.
There exist the following types of coercive measures of educational influence:
- a warning, i.e. an explanation of the inflicted harm and the consequences of the repeated commission of offences;
- the transfer of the juvenile to the supervision of parents or persons acting in loco parentis, or of a specialised state body. In this case the court should make sure that the said persons have a positive influence on the juvenile, assess correctly the actions committed by the juvenile, can ensure the juvenile’s proper behaviour and everyday control over the juvenile. The court must have at its disposal materials characterising the parents or persons acting in loco parentis, monitor their life conditions, possibility for them to provide material support to the juvenile, etc.;
- the imposition of the obligation to undo the inflicted damage, a specific coercive measure of educational influence which cannot be imposed on every juvenile (for instance, if it is connected with certain material costs and physical effort, the application of this measure is only possible to a juvenile that receives a salary or a stipend and has necessary work skills, etc.);
- the establishment of special requirements concerning the behaviour of the juvenile and restriction of his/her leisure — a prohibition may possibly be imposed on visiting certain places or using certain forms of leisure, etc.
Control over the execution by the juvenile of the measure of educational influence imposed on him/her is assigned to a specialised government authority responsible for his/her correction. A juvenile can be freed from punishment with the imposition of coercive measures of educational influence in case of passing a judgment of guilt for an offence of minor or average gravity. In this case, if the court comes to believe that it is necessary to impose coercive measures of educational influence, it must set out in its judgment the grounds for taking such a decision (the juvenile is brought to justice for the first time; he/she is characterised positively, assesses his/her actions critically, a stable and serious upbringing given in the family; a concourse of circumstances that influenced the behaviour of the juvenile, etc.). Placement of a juvenile offender in a special teaching and educational institution is admitted by the law as one of the grounds to free the juvenile from punishment if an offence of minor or average gravity was committed by him/her, as well as in case of the commission of a grave offence. However, if an offence of high societal and social danger was committed, the juvenile cannot be freed from punishment. A peculiarity of conditional early release of a juvenile from serving his/her punishment consists in that shortened terms of serving punishment are provided in the law for deciding the issue of conditional early release (Article 93 of the Criminal Code of the Russian Federation).
République Tchèque: In the Czech Republic public prosecution does not have the power to define a general outline of criminal policy in relation to justice for young people.
Public Prosecutor’s Office is mainly active in criminal proceedings (and in this context in the criminal matters of young people pursuant to Act No 218/2003 Coll. on justice in the matters of young people which came into force on January 1, 2004), and also in the criminal proceedings in the matters of criminal offences committed on children and young people) as the body of public prosecution and the supervisory body in the preparatory criminal proceedings. It is clear from the provisions of section 4 par. 1 letter a) of Act on Public Prosecutor’s Office, according to which the Public Prosecutor’s Office is the body of public prosecution in criminal proceedings and fulfils other tasks arising from the criminal regulations in the extent, under the conditions and in the way determined by law. Act on Public Prosecutor’s Office only contains general regulations. The details of the procedure of prosecutors in criminal proceedings in the above specified matters are stipulated in criminal regulations and in Act No 218/2003 Coll. on justice in the matters of young people.
Details of procedure of public prosecutors in the criminal proceedings in the matters of young people and in the proceedings in the matters of children under fifteen years of age were stipulated by the General prosecutor in the instructions of general nature (these are internal regulations of the Public Prosecutor’s Office).
On January 1, 2004, Act No 218/2003 Coll., Act on justice in the matters of young people, came into force (hereinafter referred to as the “Act”). The Act resulted from the efforts to make a new regulation of the way of reaction to criminal activities of young people. Exemption of material and procedural legal regulations concerning young people from general criminal law codes expresses the efforts for a significant change of the general conception of handling young delinquents as it not only emphasises the specific features in the area of punishment for young people. Independent legal regulation is also supported by the fact that in general criminal law regulations it is not possible to include the measures and procedures, mainly of civil law nature, taken against children under fifteen in case an act is committed which otherwise represents a criminal offence, as it does not belong in the general criminal law regulations. Last but not least, it is possible to point out that separate codification of criminal law for young people will strengthen the educational aspect of these principles on which the new codification is based.
The basic feature of the new law is an effort to stipulate the whole area of handling of all children and adolescents who breach the provisions of criminal law by their behaviour in a single legal norm. It means that every such case will be heard by a specialised juvenile court which will be able to choose such a measure which will be the most suitable with regard to the age of the adolescent, his/her intellectual and ethical maturity and seriousness of the offence committed by him/her.
The Act stipulates conditions of responsibility of juvenile offenders for their unlawful acts specified in the criminal law, measures taken as punishment for such unlawful acts, procedures, decisions and implementation of justice in the matters of young people.
The Act applies to two age groups of young people – to children under fifteen (who are not responsible for their acts from the point of view of criminal law) who committed an act which is otherwise a criminal offence, and to juvenile offenders (i.e. persons who had completed the age of fifteen but had not turned eighteen at the time when the wrong act was committed). Juvenile offenders are already responsible for criminal offences.
The Act stipulates principles of so-called restorative justice which emphasises a balanced and just reaction of society to a wrong act of a young person and which does not waive its joint responsibility for his/her failure and it infers consequences from it not only for the young person but also for solving of problems of other involved persons and groups connected with the act.
The Act is thus outlined in such a way that it stipulates the differences of the special legal regulation of criminal responsibility of juvenile offenders for committed offences and justice in the matters of young people compared to the general regulation contained in the criminal codes and connected legal regulations. In relation to the general criminal law (criminal law for adults), the regulation of justice in the matters of young people is lex specialis.
The bottom age limit when responsibility for criminal acts starts is 15 years of age. Responsibility for criminal acts is constructed as so-called relative responsibility for criminal acts. According to this conception of responsibility for criminal acts, juvenile offenders should be responsible for their criminal acts depending on the achieved degree of their moral and intellectual development, not only by simply turning a certain age. Apart from turning the determined age at the moment when a criminal offence is committed, the responsibility for criminal acts constructed in this way is also conditioned by achievement of a certain degree of moral and intellectual maturity.
A criminal offence committed by a young person is called a wrong act. A wrong act is therefore a form of delinquency of juvenile offenders corresponding to the criminal offences of adults. For their assessment, the criminal act applies, with the exceptions stipulated by law. Therefore it is not a new category of criminal offence.
Legal consequences of wrong acts committed by juvenile offenders are measures. These measures are divided into educational measures, protection measures and punitive measures.
Educational measures can be imposed by the juvenile court in the preparatory proceedings by the prosecutor with consent from the young person already in the progress of these proceedings, latest until it is completed legitimately. The consent from the young person is necessary here due to presumption of innocence – if the education measure is imposed already in the progress of the criminal proceedings against the young person.
The purpose of the protective measure is to influence the mental, moral and social development of a young person in a positive way and to protect the society against wrong acts committed by juvenile offenders.
Punitive measures can only be applied if special ways of proceedings and measures, mainly those restoring the disturbed social relations and contributing to prevention of unlawful acts, would probably not lead to achievement of the purpose of this act.
As regards juvenile offenders who are responsible for criminal acts, it is implementation of public prosecution in criminal area.
A child who had not turned fifteen at the time when the act which is otherwise a criminal offence was committed is not responsible for criminal acts according to this act but it is possible to apply to him/her measures necessary for his/her reformation, education and protection as these acts also required a suitable reaction. These measures (supervision by a probation officers, inclusion in a therapeutic, psychological or another suitable educational programme from the scope of educational care, protective education, education obligation and education restrictions) will be inflicted by the juvenile court within the civil court proceedings upon a proposal from the public prosecution (here it is implementation of non-criminal competence of the Public Prosecutor’s Office).
In the proceedings conducted against children less than fifteen years of age who were supposed commit an act which would otherwise be a criminal offence, the juvenile court proceeds in accordance with special legal regulations stipulating civil court proceedings, as children under fifteen are not responsible for criminal acts and therefore it is not possible to conduct criminal proceedings against them. It is thus civil law proceedings the basic aim of which is not to prove the guilt of the child but to take such measures to continue its proper education and favourable development.
The juvenile court will commence the proceedings either upon a proposal from the public prosecution or possibly even without this proposal. The Public Prosecutor’s Office is obliged to make the proposal immediately after it finds out that criminal prosecution is inadmissible as it is a person who is not responsible for criminal offence due to his/her age.
Cyprus/Chypre: - In Cyprus, the Attorney General’s Office is fully responsible for the prosecution policy in the Republic. See Q.7. There have been a number of circulars issued by the Attorney General and directed to public prosecutors regarding the dealing of prosecutions which involve juveniles and there is a particular sensitivity for these cases at the Law Office.
- The current situation in Cyprus Law regarding the age of criminal responsibility (after the enactment of Law 18(I)/2006) is that children under the age of 14 are not criminally responsible at all and young persons up to the age of 16 are criminally responsible, but dealt with according to the Juvenile Offenders Law.
- According to article 12 of the Juvenile Offenders Law, the choices that are available to the Court are the following: a) dismissing of the charge; b) imposing probation; c) committing the offender to the care of a relative or other fit person; d) sending the offender to a reform school; and e) ordering the offender to pay a fine or to restore the damages to which he or she was liable. Only as a last resort, and after having been persuaded that there is no other alternative, the Court may also sentence the offender to imprisonment.5.
France: En France l’action publique est fondée sur la loi et sur des directives générales émanant du Ministère de la justice. Il en est ainsi en matière de justice des mineurs, que ce soit en matière pénale ou en matière de protection des mineurs en danger. C’est ainsi par exemple que ces circulaires ont été adressées aux procureurs sur les violences dans les enceintes scolaires, sur les incendies de véhicules dans les quartiers des villes, sur els suicides en détention etc.. Si on ne peut pas dire qu’il y ait une dominante répressive, les nouveaux textes à appliquer, par exemple pour la répression des mineurs récidivistes , sont plus sévère . Pour autant il est toujours recommandé en matière de mineurs, en particulier de mineurs primo délinquants et plus jeunes, de privilégier une réponse pénale systématique mais plus tournée vers l’éducatif que sur el répressif .Par exemple on condamnera le mineur à réparer, à faire un stage de citoyenneté ou de sensibilisation aux dommages de la drogue etc. . Il n’y a pas en France d’âge limite inférieur pour prononcer une sanction pénale mais en dessous de treize ans, la sanction ne peut pas être la privation de liberté .le juge doit évaluer si le jeune a agi avec assez de maturité pour qu’on puisse considérer qu’il était responsable, ayant eu le discernement de ses actes .
Georgie/Georgia : In case of awarding or releasing from criminal liability, according to the current legislation the juvenile shall be the one who had attained twelve before the perpetration of the crime but had not reached eighteen6; though, legislative changes raising minimum age of criminal responsibility up to fourteen years has been introduced to the parliament of Georgia for further consideration.
As for the sanction applied against juveniles article 88 Criminal Procedure Code of Georgia defines the following:
· Imprisonment is awarded against a juvenile from twelve to fourteen years only for committing a grave or especially grave crime. The term of imprisonment awarded against a juvenile from twelve to fourteen years shall be bisected. However, the final sentence shall not exceed seven years. It should be noted that no juvenile under 14 has ever been imprisoned in Georgia. According to the transitive provisions of Criminal Code of Georgia, a juvenile under fourteen if imprisoned should be put into the specialized penitentiary institution for juvenile detainees aged from twelve to fourteen; This kind of institution does not exist in Georgia and as such the sanction has never been applied in practice. In addition, the legislative amendments regarding the criminal responsibility are pending before the parliament as noted above.
· Imprisonment awarded against a juvenile from fourteen to sixteen years shall be reduced by one third, and the final sentence shall not exceed ten years.
· Imprisonment awarded against a juvenile from sixteen to eighteen years shall be reduced by one fourth, and the final sentence shall not exceed fifteen years.
Thus the legislator has approached the criminal responsibility of the juvenile with particular caution. Apart from those provisions, a juvenile who has committed a less serious crime may be released from criminal liability if he has reconciled with the victim (article 891 CCG). The law explicitly provides that first-offending juvenile may be released from criminal liability if the court holds that it is advisable to apply a coercive measure of educative effect (article 90 CCG).
(For additional information regarding procedural guarantees for juveniles see question 5).
Although, the juvenile justice is primarily covered in national legislation of Georgia as in any other respective countries, the Government of Georgia has taken position that the legislative basis is not enough to fully cover reforms required in the sphere. Therefore, the approach taken by the Government has been to create a policy document that would guide all relevant agencies, including the prosecution in juvenile justice system. This was particularly important for Georgian reality, as it has only experienced soviet type of juvenile justice. Therefore, conceptually new approach has been developed known as Juvenile Justice Strategy (JJ Strategy). It is part of Criminal Justice Reform Strategy adopted in 2009. JJ Strategy has been drafted in close cooperation with UNICEF and thus encompasses relevant international standards. The strategy recognizes prevention as a cornerstone of juvenile justice system and defines that any intervention dealing with children in conflict with law should be aimed at reducing re-offending. Detention should be used for the shortest possible time in cases of serious crime. The strategy emphasizes on the need of re-integration of juveniles and children in conflict with law in the society. It also notes that due consideration should be given to the fair trial guarantees of the juveniles as well as their treatment in the penitentiary establishments. (The Juvenile Justice Strategy and Action Plan is attached).
JJ Strategy is a policy document for the whole Government and thus for any public prosecutor as well. In addition, JJ Action Plan defines specific objectives and activities, including ones in relation to prosecutors.
Lettonie/Latvia : Prosecutors are not directly involved into the development of general juveniles’ law justice. At the same time Prosecutors are involved into development of any draft legal acts in relation with protection of rights of the State and persons, including creation of such law and improvement of existing provisions related with protection and safeguarding of the rights of juveniles. According to the provisions provided for by the Section 11 of the Criminal Law with the criminal liability may be charged a person who till the day when the criminal offence was committed has reached the age of 14 years and according to the Part 1, Section 65 of the Criminal Law as of the same age the basic sentence - deprivation of liberty - may be imposed.
Moldova: In accordance with the Law nr.294 from December 25, 2008on Prosecutor’s Office, Prosecutor is an autonomous institution within the judicial authority, which in the limits of its powers and jurisdiction, protect the general interests of society, the legal order, rights and freedoms of citizens, lead and exercising prosecution, representing the prosecution in the courts, under the law.
To achieve uniform implementation of the criminal policy of the state prosecutors working to prevent and combat crime, studying the causes that generate or promote crime, shall develop and submit proposals to eliminate them and to improve legislation, including juvenile justice.
The Prosecutor’s service has the following competences:
a) in the name of the society and in public interest, ensures the enforcement of the law, protects the legal order and the citizens’ rights and freedoms, when the violation thereof calls for a penal sanction;
b) conducts and carries out the criminal investigation;
c) represents the accusation in the courts of law;
d) participates, under the law, in court trials on civil and on cases of administrative offence, where court proceedings have been instituted on its initiative;
e) ensures the legal assistance and the international cooperation in its sphere of activity;
f) implements the national penal policy;
g) ensures the efficient protection of witnesses and victims of crimes;
h) initiates civil actions, in cases set forth in the law;
i) controls the observance of laws in the places of preliminary and remand detention;
j) exercises control over the execution of judicial decisions on criminal cases.
By the Law nr.184-XVI for amending and supplementing certain acts, adopted on 29.06.2006, entered into force on 11.08.2006 amendments have been provided for jurisdiction in cases concerning minors, so that the exercise of criminal prosecution if they committed crimes was give to the prosecutor's jurisdiction.
Criminal Code, adopted by Law nr.985 of 18.04.2002, establishes the general principles of criminal liability and criminal sanctions of minors.
According to Article 21 of the Criminal Code – are criminal liable the responsible individuals who at the time when committed the offense achieved the 16 years old. Individuals who are aged between 14 and 16 years are subject to criminal liability only for crimes specified in art.21 part (2) Criminal Code.
Criminal-proceeding law provides that juvenile detention and arrest are applied for a period not exceeding 24 hours only as exceptional measure and only in cases prescribed by law, when committed serious crimes with the application of violence, especially serious or exceptionally serious. When decide on the matter of application of arrest on the minor, in each case is discussed the binding possibility to send a minor under supervision (art.184 of the Criminal Procedure Code). Under the provisions of art.186 Criminal Code, keeping the minor in custody at the prosecution stage will not exceed 30 days and this period may be extended to 4 months only.
Criminal Procedure Code, adopted by Law nr.122 of 14.03.2003, in a special Chapter “Proceeding involving juvenile offenders” of Title III establishes particular criminal proceedings in cases concerning minors, including the procedure Juvenile’s exemption from criminal sanction with the application of educational measures by the court and other international and national regulations.
Monaco: Les lignes directrices élaborées en concertation avec la Direction des Services Judiciaires visent essentiellement à concilier la répression des infractions commises par les mineurs et le volet éducatif afin d’aider les mineurs délinquants à trouver ou retrouver une place dans la société au travers notamment de mesures d’assistance éducative sous le contrôle du Juge tutélaire. Des dispositions spécifiques relatives à l’admonestation effectuée par les magistrats du Parquet Général permettent une gradation des sanctions.
L’âge de la majorité pénale n’est pas fixé par les textes, toutefois, les mineurs de moins de 13 ans ne peuvent être soumis qu’à des mesures à visée éducative.
Allemagne/Germany : Fore far more than one hundred years, Germany has an explicit policy on juvenile delinquency. Since 1908, the Juvenile Court Act (YCA) focuses on the idea of education and rehabilitation of young offenders rather than that of their punishment and retaliation. These principles have been enriched repeatedly by many challenges, such as the goal to limit the time of deprivation of liberty and to implement diversion measures. The German YCA, especially the one 1923, has inspired the legislation of many countries. The Act finds application to offenders who are between fourteen and eighteen years of age at the time of their offence. The young offenders are to be prosecuted only if they are mature enough to realize their wrong doing and are capable to act appropriate. The Act also applies to offenders between the age of eighteen and twenty-one, if their personal development is like a young offender or the offence is typically youth –like. According to the YCA, the young offenders are prosecuted for the same types of offences like the adults but with different consequences. Imprisonment is the last measure and can only be imposed by the judge; Prison time is kept between six months and ten years.
Montenegro: - Juveniles are persons not older than 18 years. Criminal responsibility of juveniles we divide in three groups :
The Criminal Procedure Code of Montenegro prescribes procedural provisions for juveniles that are applicable on persons who committed criminal offence as a juvenile, and at the time of criminal procedure or at the time of trial, they have not reached the age of twenty-one.
For all criminal offences a juvenile proceedings shall be instituted only upon a request of the State Prosecutor.
Juvenile penalty policy have more educative character. The Criminal Code of Montenegro provide for diversion orders with a purpose to avoid instituting criminal proceedings against a juvenile or to discontinue the proceedings, i.e. to influence the proper development of the juvenile and strengthening of his/her personal responsibility by the administration of diversion order so that s/he does not commit criminal offence in future. A diversion order may be imposed on a juvenile criminal offender for a criminal offence punishable by a fine or imprisonment for a term of up to five years. Diversion order may be imposed on a juvenile by the Court at its own discretion or on the notion of the competent State Prosecutor.
When selecting diversion order, competent State Prosecutor and Court , in accordance with their powers, shall take into account fully interest of the juvenile and of the victim, taking care not to interfere within schooling and employment of the juvenile.
Type of diversion orders:
1) settlement with the victim, so as to remove the harmful consequences of the offence, wholly or partially, by reparation, apology, work or in some other manner,
2) regular attendance of school or going regularly to work,
3) involvement, without a fee, in the work of humanitarian organizations or social, local or environmental activities,
4) undergoing appropriate examinations and curing the addiction caused by consumption of alcoholic drinks or narcotic drugs,
involvement in individual or group treatment at an appropriate health institution or
In the new Law on Juvenile Justice it is prescribed notwithstanding existing diversion orders two new ones: involvement in sport activities and payment of a certain amount of money in favour of humanitarian organization, fund or public institution in a case of juvenile by its own efforts generates income or has possessions. Within this Law it is introduced possibility that diversion order can be applied upon request of the State Prosecutor. According to this new Law diversion orders cab be imposed for a criminal offence punishable by a fine or imprisonment for a term of up to ten years.
Republic of Macedonia/République de Macédoine : Competent public prosecutor may, in the application for a crime committed by a juvenile, which provided a fine or imprisonment up to three years:
- To guide the proceedings before the court, although there is evidence that he did offense, considers that it would not be necessary to run a procedure in view of the nature of the offense and the circumstances under which it is done, the former life of the minor and his personal properties, as well as execution of the sentence or the educational measure is underway;
- Conditionally to delay initiation of proceedings before the court during six months provided that within this period he will not do another crime and to compensate for damage or otherwise to remedy the harmful consequences caused by executing the offense;
- To guide the process if based on a report from the Center finds that the agreement was reached between the juvenile and his family and the injured party to recover the benefits, reimbursement of damage or repair the harmful effects of the offense or
- To propose to the court to determine against juvenile a general measure-useful work to 30 hours.
For the action of the juvenile specified by law as a crime or offense, authorities and services by rule, do not begin court proceedings to avoid adverse impact on the juvenile, unless the personal properties of the juvenile and the circumstances under which the action is done does not suggest the necessity of conducting the proceedings, which means that there are educational purposes. Toward juvenile who at the time of execution of the action that by the law is defined as a crime or offense, not turned 14 years old - a child at risk may not be applicable sanction provided by Law on juvenile justice, while the minor who is not turned 16 years cannot be imposed juvenile prison.
Hongrie: 1/a In the Republic of Hungary prosecution service is part of justice – including juvenile criminal justice – with an exceptional role in its system. Starting from the beginning of the criminal case up to the termination of penal law it has got an indispensable part; without public prosecution there is no adequate crime prevention, effective prosecution nor feasible criminal policy.
The activity of the child- and youth protection prosecutor is a special field connected to children and juveniles, a group of persons protected through separately handled guarantees in the statutory instruments. Prosecutors in this field co-operate in the prosecution of crimes committed by a juvenile perpetrator, the observance of the specific procedural regulations and take the necessary child protection measures.
Apart from the prosecution of the committed crimes, one of their main tasks is to analyse the crimes committed by juvenile perpetrators with the aim of their prevention. Juvenile prosecutors act pursuant to statutes, other legal regulations, relevant decrees and guidelines of the Prosecutor General.
The Prosecutor General has issued a decree especially for juvenile prosecutors in which he lists the needs to be observed throughout their work. According to this the juvenile prosecutor must:
§ profoundly examine whether the law enforcement agency observed the special regulations concerning juveniles;
§ superintend whether the guaranteed statutory instruments concerning the right of the juvenile to defence and legal representation become effective;
§ examine whether the special statutory conditions exist in case of coercive measures restricting personal liberty of the juvenile;
§ in cases provided for by the law carefully supervise the independent investigation of the law enforcement agency;
§ apply legal possibilities of diversion (postpone indictment, mediation, etc.) if the proper advancement of the juvenile with regard to personal circumstances and the nature of the criminal offense can be reached without court proceedings;
§ make the necessary child protection arrangements in case of circumstances indicating the abuse of the minor;
§ bring charges and represent the case during the proceedings at the juvenile court;
§ supervise the legality of the detention and treatment in the reformatories and prisons for juvenile delinquents at least twice a month;
§ examine the enforcement of children’s rights and the legality of misdemeanour proceedings against juvenile delinquents.
1/b The juvenile criminal justice of the Hungarian legal system grants ab ovo impunity to children. According to the Hungarian Criminal Code grounds for the preclusion of punishability are provided if the perpetrators have not attained their fourteenth birthday at the time of the committal.
In the opinion of the legislator the physical and intellectual development of a child – mainly due to the fact, that this is the age when children leave primary school – reaches a level which enables them to account for their actions. The lack of capacity for guilt is an indisputable presumption under the age of fourteen.
The factual behaviour performed by a minor – due to lack of the subject – is not regarded as a crime; however, this fact does not exclude the possibility of basic child care or measures taken by the authority.
The term minor is used to refer to a person who is above the age of fourteen but under the age of eighteen at the time of the committal. The main aim of punishment or any measures against a juvenile is to help the juvenile improve in the proper direction and become a useful member of the society. The legal provision - according to which a sentence can be imposed on a juvenile if injunction against a juvenile is not expediential, whereas measures for incarceration or punishment can only be imposed if the goal of the injunction or punishment cannot be achieved otherwise - becomes regularly operative in practice:
Liechtenstein: The minimum age for criminal responsibility is fourteen.
No specific guidelines are provided for Juveniles, but a special procedure is provided for proceedings and criminal trials against juvenile defendants. The legal basis is the so called Juvenile Court Act. This Act focuses on the idea of education and rehabilitation of young offenders rather than that of their punishment and retaliation. One of the goals is to limit the time of deprivation of liberty and to implement alternative (diversion) measures. The Act is applied to offenders who are between fourteen and eighteen years of age at the time of their offence. The young offenders are to be prosecuted only if they are mature enough to realize their wrong doing and are capable to act appropriate.
Hence the Act is partly different from the procedure concerning adult defendants:
- particular attention is paid to the personality of the young defendant;
- one of the aims is also to re-educate him/her;
- the social service plays a relevant role;
- the provisional arrest is a sort of ultima ratio;
- preventive custody is differently regulated and specific rules are provided for
- the young offenders are prosecuted for the same types of offences like the adults but with different consequences. Imprisonment is the last measure and can only be imposed by the judge; Prison time is kept between six months and fifteen years.
If the conditions for detaining on remand are fulfilled, but the purpose of the detention can be attained through less interfering measure, the court renders, if the accused consents hereto, such a decision in the place of detention. E.g. the court can decide that the accused shall reside in a suitable home or institution. Furthermore, when the accused is 14-18 years old the Act establishes maximum detaining periods (depending on the seriousness of the crime), that are significantly lower than those that apply to adult offender.
If the Police detain a juvenile, the social services and the parents have to be notified. Also, a representative from the social services may be present during a police interrogation.
In cases of violent crime or other kinds of serious crime, the social services have to draw up a plan on how to give the juvenile the support necessary and prevent the juvenile from committing crimes in the future.
Serbie: The prevailing character of the general policy on juvenile justice is more educative than repressive. The minimum age for criminal responsibility is over the 14 years of age. The minimum age under which it is not permissible to imprison the child is the 16 years of age.
Iceland : According to Article 14 of the General Penal Code nr. 19, February 12, 1940 a person shall not be punished on account of an act committed before he or she attained the age of 15 years.
The Director of Public Prosecutions has issued rules nr. 9/2009 (on case procedures against children under the age of 15) stating the following in Article 1: According to Article 14 of of the General Penal Codae no. 19/1940, a child is deemed as being criminally chargeable upon the end of his/her 15th birthday. Children who have not reached this age are not liable and cannot be penalized for their offences. Additionally, they are not defined as suspects in the interpretation of Act no. 88/2008 on Criminal Procedure.
Notwithstanding the aforementioned, the police are obligated to investigate the offences by non-criminally chargeable children with respect, among other things, to identifying the extent of the offence, investigating possible involvement of other individuals in an offence, facilitating the discovery of and/or returning items to which the offence pertains, seeking to facilitate the welfare of children and adolescents.
According to Article 20 of the Child Protection Act no. 80/2002, the police are obligated to collaborate with the child protection committees and to provide assistance in resolving cases.
Albania/Albanie: According to the Constitution of Republic of Albania and the Criminal Procedure Code (CPC) the Prosecution Office is the only institution in the country entitled to exercise the criminal action. In such capacity it applies the general policy on criminal matters, the juvenile justice included.
The Constitution of Republic of Albania, article 54, deals in general with the juveniles affirming the duty of the state to guaranty a special protection to them. Such general policy is expressed even through CPC.
In article of CPC the minimum age of criminal responsibility is 14 years old and the minimum age to apply life imprisonment is 18 years old.
Warrant of arrest
The article CPC stresses out that in issuing warrants of arrest for the minor offenders (14 to 18 years old) the Courts have to take into account the needs of the minor to attend the educative processes ( school, etc)
According to article of CPC the minor defendants can not be sentenced more than the half of the maximum penalty provided by Criminal Code for the offence committed by him/ her.
Alternatives of imprisonment penalties
Article of CPC underlines that penalties different from imprisonments are to be applied for minor defendants when crimes committed or their social risk are not of a high importance.
1. Le système de justice pénale de votre pays prévoit-il des procureurs spécialisés pour les mineurs, chargés d’appliquer des lois et procédures spécifiques? Les procureurs forment-ils, avec les juges spécialisés pour les mineurs, une entité spécialisée au sein de la juridiction, au sein de laquelle, par exemple une politique générale en matière de justice des mineurs serait définie ou réfléchie ? Veuillez développer.
Does your country’s criminal justice system provide for specialised public prosecutors for juveniles, entrusted with the implementation of specific laws and procedures? Do public prosecutors form, together with specialised judges for juveniles, a specialised entity within the court where, for instance, a general policy for juvenile justice is defined or discussed? Please give details.
Belgium/ Belgique: Les fonctions du ministère public près le tribunal de la jeunesse sont exercées par un ou plusieurs magistrats du parquet désignés par le procureur du Roi.
Ces magistrats exercent également les fonctions du ministère public près le tribunal civil chaque fois que celui-ci est appelé à statuer sur les mesures provisoires relatives à la personne, aux aliments et aux biens d'enfants mineurs non émancipés dont les père et mère sont en instance de divorce ou de séparation de corps (art. 8 loi du 8 avril 1965).
Croatia/ Croatie: In Municipal State Attorney’s Offices within County State Attorney’s Offices and in County State Attorney’s Offices, there are Sections for Juvenile Delinquency within Criminal Departments. State Attorneys for juveniles work within those sections and present their cases before Municipal courts within County Courts and County Courts – sections for juveniles. State Attorneys for juveniles must have expressed tendency/inclination toward upbringing, needs and benefits of the youth. They also have to possess basic knowledge of criminology, social pedagogy and social care for juveniles. Sate Attorneys for juveniles are appointed to the period of five (5) years from State Attorneys or Deputy State Attorneys in State Attorney’s Offices by the State Attorney General of the Republic of Croatia. After 5 years State Attorney may be re-appointed. In annual work schedule of the Office of the State Attorney General of the Republic of Croatia a Deputy State Attorney is determined to conduct proceedings before Juvenile Council of the Supreme Court of the Republic of Croatia. State Attorney Office has expert associates – social pedagogue – defectologist and social workers who collect data for the state attorney so as to reach decision on purpose of commencing proceedings against a juvenile, and justification of proposing discontinuance of preparatory proceedings against a juvenile.
State Attorneys for juveniles solve criminal cases of juvenile delinquency, protection of children and juveniles and cases where perpetrators of criminal offences are younger adults.
Denmark/ Danemark: No
Spain/ Espagne: Spanish criminal justice system provides for specialised public prosecutors and for specialised judges for juveniles.
Public prosecutors and judges for juveniles form a specialised entity within the court. They have specific training in Juvenile Law. The principle of specialization in the Juvenile Justice system is stressed by Law. The aim is to reach a Justice for Juveniles different from the ordinary criminal system, oriented towards the best interest of the juvenile.
Estonia/ Estonie: Yes, in the Republic of Estonia, crimes against minors and crimes committed by minors are dealt with by specialised prosecutors.
Do public prosecutors form, together with specialised judges for juveniles, a specialised entity within the court where, for instance, a general policy for juvenile justice is defined or discussed? Please give details.
No separate entity has been formed together with judges, but judges and prosecutors participate in joint trainings and meetings, in which they discuss problems relating to work.
Finland/Finlande: The Finnish prosecution service does not employ prosecutors specialising exclusively in offences suspected to have been committed by juveniles. In practice, however, such cases concerning young people are often assigned to certain prosecutors, who thereby develop firm familiarity with the special characteristics of these cases. The Finnish prosecution service employs special public prosecutors with particular expertise in criminal cases involving juvenile victims.
While there are no specialised juvenile courts or special divisions handling cases involving young offenders in the Finnish court system, such cases tend to be assigned to certain judges in some courts.
Greece/ Grèce: The Minors Public Prosecutor’s seat is always in the building of the local 1st Instance Public Prosecutor’s Office, so that immediate conveyance of the apprehended minor offenders before him is made possible. He exercises penal prosecution against minor offenders and either remits them directly to the competent Minors Court or orders holding main investigation by the competent Minors Investigator. In Athens, there are two (2) special Minors Investigators (article 33 par.3 Code of Penal Procedure and article 26 Courts Organisation Code), who hold investigation in cases for which adults are punished at the grade of felony. Minors Investigators as well as Minors Judges are selected on the basis of their special studies or knowledge (article 7 Code of Penal Procedure and article 26 Courts Organisation Code) and their previous occupation with issues concerning minors (i.e. judges for family law disputes). During their two-year tenure of office –which may be extended for another two years- they have the opportunity to further training by attending special seminars and congresses organised by scientific agents, international organisations, universities and the National Judges and Public Prosecutors School.
All the above mentioned is also applied to the specially appointed Minors Public Prosecutors.
In Athens, 1st Instance Minors’ Courts, that is Minors’ Judge, Minors’ Court Secretariat and Minors’ Court trial hall are established in a different place from all the rest 1st instance penal courts, so that mingling of minors with the rest accused adults is avoided and a better environment for them is obtained. In particular, they are established in a separate part of the Athens Court of Appeal along with the offices of the Minors’ Supervisors Service of Athens, the Supervisors of which carry out the investigation concerning moral and mental situation, previous life, family conditions and in general the environment of every accused minor and draw up his/her individual file card, which they present to the Minors’ Judge and during the trial, in which they are present (article 239 par.2 passage 2, 3 Code of Penal Procedure and article 8 par.1 Presidential Decree 49/79).
The trials of the accused minors are always held in camera, that is without publicity, where only the persons having the custody of the accused minors (parents, guardians, etc.) are permitted to be present, beyond Judges and Minors’ Public Prosecutors, litigant parties, their Counsels and the Minors’ Supervisors.
Article 113 of Code of Penal Procedure provides for the Minors’ Courts as having substantive jurisdiction to judge criminal actions committed by minors from thirteen to eighteen years old. These courts are divided into One-Judge and Three-Judges 1st Instance Courts and to 2nd Instance Courts, called Courts of Appeal. The One-Judge Minors’ Court judges: a. the actions committed by minors except from those judged by the Three-Judges Minors’ Court, b. the minor offenses committed by minors in the 1st Instance Court seat and c. the appeals against resolution of the Minors’ Magistrate Court. Also, the One-Judge Minors’ Court imposes the penitentiary or remedial measures determined by Penal Code for minors who have not completed the 13th year of age. The Three-Judges Minors’ Court judges criminal acts committed by minors, for which the penalty of confinement in a special juvenile detention establishment, which must be imposed according to the Penal Code, is at least five years. The Minors’ Court of Appeal judges the appeals against the resolutions of One-Judge and Three-Judges Courts that operate in Misdemeanours’ Courts. The substantive jurisdiction is determined by the characterisation of the action by Penal Code as felony, misdemeanour or minor offense, based on the real circumstances contained in the indictment bill or the Public Prosecutor’s summons.
In Greek penal law, despite the general tripartite division of crimes into minor offenses, misdemeanours and felonies on the basis of the penalty that might be imposed by law, felonies, when committed by minors, have always the character of misdemeanour, as explicitly determined in article 18 par.2 of Penal Code, since the confinement in a special juvenile detention establishment is the heaviest penalty which might be imposed. The most important favourable consequence of characterising felonies committed by minors as misdemeanours, is that those are time-barred as misdemeanours, that is at any case after five years, instead of twenty or fifteen years, as provided for adults.
According to article 130 par.1 of Code of Penal Procedure, in case a minor participates in a crime along with adults, penal prosecution of the minor is disjoined and the minor is judged by the Minors’ Judge. In case of misdemeanours, if the Public Prosecutor -in case of induction through direct summons and by virtue of a well-reasoned decision of his which mentions the concrete reasons which concern the interest of justice- or if the judicial board deems that disjoining is not indicated for reasons concerning the interest of justice, the case is judged by the court competent for the accomplice who is punishable with the heaviest penalty, in which court the special minors’ judge also participates at all instances, if possible. According to the disposition of article 130 par.3 Code of Penal Procedure as modified by article 7 par.2 Law 3090/2002 the joint trial of the minor along with his adult collaborators and his non referral to the minors’ court is always forbidden, if he/she has not completed the fifteenth year of age. As it concerns the infringements of Drugs Laws Code, in case a minor participates in criminal actions infringing this law, committed by adults or in case of connection, the case is always disjoined as per the minor, independently of his/her age (article 18 Law 1729/97 and Ath.Kontaxi, Code of Penal Procedure, 4th ed.2006, 1st volume, article 130, p.1011). Currently, in practice, it is extremely rare to judge minors together with their adult collaborators.
Moreover, article 45A Code of Penal Procedure provides for the power of the Public Prosecutor to refrain from exercising penal prosecution against a minor who has committed a misdemeanour or a minor offense, if by the investigation of the circumstances in which the action was carried out and of the whole personality of the minor, he/she deems that its exercise is not necessary in order to restrain the minor from committing new criminal actions. In that case, penitentiary measures may be imposed to the minor or the payment of a pecuniary amount up to 1,000 euros to a non-profit or a public benefit legal entity, within a time limit set for his/her compliance.
After modification of article 489 par.1 d Code of Penal Procedure, by article 4 par.4 of Law 3189/2003, the minor condemned by One-Judge or Three-Judges Minors’ Court to confinement in a special juvenile detention establishment, has always the possibility to file an appeal against the above condemnatory resolution, which is appellable, independently of the penalty’s magnitude, that is the duration of the confinement imposed. On the contrary, the resolutions of the Minors’ Courts are not attacked by legal recourses if they impose penitentiary or remedial measures provided for in articles 122 and 123 of Penal Code, because these are of an administrative character and do not constitute penalties and the resolutions by virtue of which they are imposed are not condemnatory but releasing (Supreme Court 366/1998).
Italy/ Italie: Yes. The Italian criminal justice system provides for specialized public prosecutors and courts for juveniles, entrusted with the implementation of specific laws and procedures. Specialized professional judges and honorary judges act in 26 specialized criminal courts for juveniles. A specialized public prosecution office exists for each of those courts.
In every Court of Appeal there are specialized sections which have jurisdiction on criminal and civil trials concerning juveniles.
Netherlands/ Pays-Bas: In the Netherlands each court district has specialised public prosecutors for juveniles. Among other qualifications, they must have an affinity with and knowledge of juvenile criminal and procedural law, as well as of legislation in other relevant areas such as child protection.
In combating juvenile crime, prevention and aftercare are at least as important as prosecution and sentencing. To be able to achieve a proper balance, these specialised public prosecutors must be fully familiar with civil law instruments and with the care services. They must also have some knowledge of child development and the expertise that will enable them at a later stage to chair the Court District Youth Platform (AJP). Indeed, the mandate of the specialised public prosecutors for juveniles is broader than the criminal law alone – they are also empowered, for example, to apply to the courts for supervision orders.
Poland/ Pologne: In this regard, have not been provided adequate legal regulations. Prosecutors dealing with juveniles cases applying the general rules of law applicable to all offenders.
Within the courts Polish law does not provide the special units, in which judges and prosecutors cooperate in this field. However, in Polish legal system the family judges are dealing with cases of juveniles. Additionally, the guardians are involved in cases of juveniles. The family judges cooperate in this area with family and guardian centers.
Slovak Republic/ République Slovaque: The Criminal Procedure Code in Sec. 347(1) reads that the investigation and fast-track investigation must be conducted and decisions concerning juvenile offenders may only be made by officers who have sufficient experience with the upbringing of the youth in order to achieve the purpose envisaged by the criminal proceedings. Respect for legal rules applicable to the Prosecution Service and its role in the criminal justice system resulted in the essential need to introduce specialization of prosecutors in juvenile crime and crimes against children, and the need of adequate and systematic specialized training. Under the Decree of the Prosecutor General No. 6/2008, specialisation in juvenile crime and crimes against children was put in place at all levels of the Prosecution Service (including District and Regional Prosecution Offices as well as the General Prosecution Office). Specialization is defined as the main focus of the prosecutor´s practice. All prosecutors involved in the selection procedures had to show professional knowledge and understanding, as well as their experience in the upbringing of the youth. Specialised prosecutors supervise legality of the police investigation procedures before the institution of prosecution and at the pre-trial stage; they also act as prosecution counsels once the indictment was brought, and they negotiate plea-bargaining agreements with respect to the offences committed by juvenile offenders or by persons who at the time of the commission of the offence had not reached the age of 14, or also, with respect to the offences against family and youth and all other cases, in which the victim is below the age of 18. Specialised youth crime prosecutors will report information to the prosecutor acting in the civil proceedings; in the light of such recommendations the court may impose mandatory educational or medical treatment orders based on information contained in the investigation case folder. Specialised youth crime prosecutors are mainly obliged to educate themselves, and regularly attend training courses within the continuous education scheme organized by the Prosecution Service and the Judicial Academy. The list of specialised youth crime prosecutors is kept by the General Prosecution Office of the Slovak Republic, and any changes shall be reported by the Chief Regional Prosecutors not later than within one month after the change took place.
Unfortunately, there are no judges specialised in juvenile crime. Court cases are assigned to trial judges by the Electronic Allocation and Case Management System, which on one hand guarantees impartiality of courts, but on the other hand cases involving juvenile offenders are not tried by specialized judges; they are handled and tried by judges randomly selected by the Electronic Allocation and Case Management System from among all criminal judges trying cases within a particular court.
Romania/ Roumanie: Yes. There are specialized judges and prosecutors for juveniles.
Thus, according to article 39, paragraph (2) and article 40 of the Law No. 304/2004 on the judicial organization, within the courts of first instance specialized sections or panels shall be established for juvenile and family. The specialized panels and sections for juveniles and family, as well as specialized tribunal for juveniles and family shall judge offences committed by or against minors. When there are more accused in the same case, some of them being under age, and others of age, and severance of causes is not possible, the competence shall lie with the juvenile and family specialized tribunal.
The prosecutors specialized in cases with minors are not a part of the specialized panels. In the criminal trial, during the trial stage, the prosecutor has a special statute and role: he is not a party in it and he is not the representative of the state. His role is sui-generis, that of a guarantor of finding the truth and of the observance of the legal provisions, because, on the one hand, he is the titleholder of exerting the criminal action and, on the other hand, he has the obligation to lay down conclusion according to the situation resulting from the evidence produced in the case.
According to article 316 of the Law 29/1968 – the Criminal Procedure Code: “During the judicial investigation and debates, the prosecutor performs an active role, in order to reveal the truth and to ensure the observance of the legal provisions. The prosecutor is free to present the conclusions he deems to be well-grounded, according to the law, taking into account the evidence produced in the case. (…)When the judicial investigation does not confirm the accusation or when one of the causes of cessation of the criminal trial foreseen by article 10 has occurred, the prosecutor lays down, according to case, conclusions of acquittal of the defendant or cessation of the criminal trial. ”
The prosecutors together with the judges specialized in cases with minors do not form an entity within the court where, for example, the general policy for juvenile justice is discussed and defined. The independence of the judges and the role of the prosecutors are mistakenly interpreted, the first one is seen absolute, rigid, and the second is reduced to the role of “party” in the trial, which, of course, does not correspond to the legal status. Anyway, within the judicial activity, there are no mechanisms of cooperation provided between judges and prosecutor, any of such forms are not foreseen by the legal framework and are perceived as an infringement of the judge’s independence.
Slovenia/ Slovénie: In our criminal justice system we have specialized public prosecutors for juveniles. In bigger state prosecutors offices we have special departments dealing with criminal cases against juveniles.
Slovenian Criminal Procedure Act has special chapter dealing with proceedings against juvenile perpetrators. In county courts, higher courts and in the Supreme Court there are special departments for juvenile crimes and special “juvenile” panels of judges. In district courts there are specialized judges for juvenile crimes.
Slovenian state prosecutors are not members of any such specialized entity within the court, but they have the possibility to influence general policy in this field, especially with the proposals of sanctions applied against juveniles. State prosecutor is the only prosecutor against juveniles in our criminal justice system and is at the same time party of procedure, with the possibility to file an appeal against court decisions. Through use of this legal remedy we try to influence the court decisions following our criteria which were established through the jurisprudence.
Sweden/ Suède: Our criminal justice system and the above mentioned law with specific rules concerning juveniles (1964:167) provides for specialized prosecutors for juveniles. Juveniles between 15 and 18 are normally not prosecuted as there, according to the above mentioned law, is a very wide possibility for the prosecutors to waive the case, articles 16 and 17 in the law. If the prosecutor has waived the case, the prosecutor will have a meeting with the juvenile perpetrator and his or her parents. The social authorities should always be informed if the juvenile has not reached the age of eighteen. A representative from the social authorities should be present at the hearings during the preliminary investigation of this juvenile if possible and if it does not damage the investigation.
Turkey/ Turquie: According the article 29 of Juvenile Protection Law (No: 5395) has in every Chief Public Prosecutor’s Office a juvenile bureau to be established.
An adequate number of Public prosecutors shall be assigned to this bureau by the Chief Public prosecutor, from among those who meet the qualifications provided for in paragraph one of Article 28.”
The referred article 28 which regulates the abilities of the judges to be appointed to the juvenile courts finds application to the public prosecutors too.
We understand from the text that the public prosecutors functioning in the juvenile bureau of the Chief Public Prosecution Service should have preferably specialized in juvenile law with training in the fields of child psychology and social services.
According article 30 of the Juvenile Protection Law (No: 5395) the duties of the Juvenile Bureau are as follows:
“-) to carry out the investigation procedures related to juveniles pushed to crime,
- to ensure that necessary measures are taken without any delay, in cases which require measures to be taken with regard to juveniles,
- to work in cooperation with the relevant public institutions and organizations and non-governmental organizations for the purpose of providing the necessary support services to juveniles who need help, education, employment or shelter, from among juveniles who need protection, who are victims of a crime or who are pushed to delinquency; and to notify such and similar cases to the authorized institutions and organizations, and
- to carry out the duties specified in this Law and in other laws.”
But in cases where delay is considered to be risky, these duties may also be carried out by Public prosecutors who are not assigned to juvenile bureaus.
The law foresees in Article 31 that in law enforcement services a juvenile unit has to be established.
· The law enforcement duties related to juveniles shall be carried out first of all by the juvenile units of the law enforcement.
· When starting a procedure related to juveniles in need of protection or pushed to crime, the juvenile unit of the law enforcement shall notify the situation to the juvenile’s parent or guardian, or to the person who has undertaken the care of the juvenile, to the bar and the Social Services and Child Protection Agency, and if the juvenile is residing at a public institution, then also to the representative of such institution. However, any relatives of the juvenile who are suspected of soliciting the juvenile to commit the crime or of abusing the juvenile shall not be given any information.
· The juvenile shall be allowed to be accompanied by a next-of-kin during the period he/she remains at the law enforcement.
· The personnel at the juvenile unit of the law enforcement shall be provided with training on topics such as juvenile law, prevention of juvenile delinquency, child development and psychology, social services and so on, by their own agencies.
· In case of a notification or establishment that the juvenile is in need of protection or in case of existence of reasons indicating that waiting for an urgent protection decision will be against the interest of the juvenile, the juvenile unit of the law enforcement shall secure the safety of the juvenile by taking the measures required due to the circumstances and shall deliver the juvenile to the Social Services and Child Protection Agency as soon as possible.
According to the article 32 of the Juvenile Protection Law (No: 5395) judges and pblic prosecutors to be assigned at the courts, and the social workers and probation officers appointed at probation and assistance centre directorates shall be provided with training on subjects such as juvenile law, social service, child development and psychology in line with the principles set forth by the Ministry of Justice during candidateship periods.
It shall be ensured that those appointed to serve at courts receive in-service training oriented to provide them with the opportunity to specialize in their fields and self-development.
- As it it has been mentioned above a juvenile bureau has to be established at the Chief Public Prosecutor’s Offices. An adequate number of Public prosecutors shall be assigned to this bureau by the Chief Public prosecutor, from among those who meet the qualifications provided for in paragraph one of Article 28.
This bureau works together with the juvenile courts or juvenile heavy penal courts.
Article 25 of Juvenile Protection Law (No: 5395) foresees that, the juvenile court shall be composed of a single judge. These courts shall be founded in each provincial centre. In addition, they may be established in the districts determined taking into consideration the geographical locations and work load of the regions, by obtaining the positive opinion of the Supreme Council of Judges and Public Prosecutors. Where required due to heavy work load, more than one chambers may be established for juvenile courts. These chambers shall be given numbers.
A remarkable regulation of the Juvenile Protection Law (No: 5395) is that the Public prosecutor shall not be present at the hearings administered at juvenile courts.
The main reason for this regulation is given as that there is insufficient number of prosecutors to conduct this work. But there are opinions too which do not consider positive the presence of public prosecutors during the trials of minors which evaluate that their presence requesting for a penalty could have a negative effect on the feelings of the minors.
But a difference of the public prosecutor within the Turkish Criminal law is that he is obliged according the article 160 of the Criminal Procedure Code “to collect and protect all the evidence in favor of or against the suspect and to protect the rights of the suspect, through the judicial security force under his or her authority, for the investigation of the material truth and for the execution of a fair trial.” Therefore to consider that the public prosecutor as a public officer which wants only the disadvantage of the minors would be a jump towards wrong direction.
This regulation which do not allow the prosecutor being present at juvenile courts could be thought to be changed because it may lead to circumstances that an improper prosecution takes place in courts without a prosecutor during the search of the material truth and by the implementing of the procedural rules. And this could cause disadvantages for the accused minors.
Of course the public prosecutors of the locality of the juvenile courts may refer to legal remedies against the decisions of juvenile courts.
Around 80 juvenile courts are functioning together with juvenile heavy penal courts all over the country already.
Juvenile heavy penal courts have one presiding judge and an adequate number of members, and the court sit with one presiding judge and two members.
These courts have to be established in the localities determined taking into consideration the geographical locations and work load of the regions, by obtaining the positive opinion of the Supreme Council of Judges and Public Prosecutors.
Where required due to heavy work load, more than one chambers may be established for juvenile heavy penal courts. These chambers are given numbers.
Opposite to the juvenile courts, in the hearings in juvenile heavy penal courts the public prosecutor has to be present.
According Article 26 of the Juvenile Protection Law (No: 5395) the Juvenile courts have to administer the actions filed with regard to juveniles pushed to delinquency, for crimes falling under the jurisdiction of basic penal courts and penal courts of peace.
Juvenile heavy penal courts have to administer suits related to crimes committed by juveniles and falling under the jurisdiction of the heavy penal court.
Courts and juvenile judges have the duty to take the necessary measures specified in this law and in other laws.
Public prosecution suits filed with regard to juveniles have to be administered at the juvenile courts according the Juvenile Protection Law (No: 5395). But the provisions of Article 17 as regards the crimes committed through participation are reserved.
Article 17 of the Juvenile Protection Law (No: 5395) foresees that “In case it is considered necessary that the trials be carried out together, general courts may decide, during any stage of the trial, for consolidation of trials, on the condition that such consolidation is found appropriate by the courts. In such an event, the joint cases shall be administered at general courts.“
· The judicial territory of juvenile courts have to be determined with the territorial boundaries of the province or district in which it is established.
· The judicial territory of juvenile heavy penal courts shall be the administrative territories of the central province or district where they are located, and of the districts which are judicially connected thereto.
· Any decision to determine or change the judicial territories of the juvenile courts and juvenile heavy penalty courts in consideration of geographic location and work load shall be given by the Supreme Council of Judges and Public Prosecutors upon the proposal of the Ministry of Justice.
The judge or the juvenile court may, ex officio or upon the request of the supervision officers, the juvenile’s parent, guardian, caretaker or supervisor, the representative of the institution or person implementing the measure and the Public prosecutor, examine the results of the measure being implemented with regard to the juvenile, and abrogate, extend or change the measure.
England and Wales/ Angleterre et pays de Galle: The Crown Prosecution Service appoints youth specialist prosecutors. Their role is to make the major decisions in all youth cases and to prosecute youths in court. The youth court is presided over by a District Judge or by a panel of magistrates who have received youth training. The CPS works with colleagues in other youth justice agencies such as the youth courts, police and youth offending teams to implement policies that require interagency cooperation, such as the Persistent Young Offender pledge to halve the time from arrest to sentence that ended in December 2008, and the current Criminal Justice: Simple, Speedy Summary initiative to reduce delay in the youth court. These interagency groups operate on a local basis and although they may discuss national policy, they may devise their own local procedures and protocols.
Scotland/ Ecosse: There are no specialised public prosecutors in Scotland who deal exclusively with juvenile offenders, although many individual prosecutors may build up a certain level of expertise over time.
The development of policy on how juveniles are dealt with in the criminal justice system is achieved through a variety of routes – it may be through government or parliamentary action, for instance via legislation, or for more incremental reforms this may be achieved through policy decisions by criminal justice partners, including the public prosecutors.
In Scotland , if a juvenile is to appear in court as an accused, legislation dictates that the court should sit in a room which is not, in ordinary circumstances, a court room.7
Additionally, a pilot scheme was recently run in the Lanarkshire area of Scotland where specialist ‘Youth Courts’ were established for offenders aged 16 and 17 years old. These were seen as a transitional option between the Children’s Reporter stage and attendance in a full adult court.8
Ukraine: Specialization of prosecutors (and judges) taking part in proceedings of crimes committed by minors and/or against minors, is not defined on the legislative level.
However, there is an interdepartmental specialization. Subject to clause 7.1 of the order of the Prosecutor General of Ukraine dd. April 15, 2004 N 6/1 “On organization of operation of the prosecution agencies in the sphere of protection of rights and freedoms of minors”, the public prosecution in criminal cases dealing with juvenile offences shall be vested on the most experienced prosecutors. Usually, they are prosecutors supervising over law observance on protection of rights and freedoms of minors. Public prosecutor took part in all proceedings in criminal cases dealing with offences and dangerous acts committed by juveniles.
Courts have the similar departmental specialization.
The recent Concept of the Juvenile Justice Development in Ukraine supports such specialization.
As a rule, prosecutors undergo advanced training with the National Academy of the Public Prosecution of Ukraine at least every five years.
Armenia/ Arménie: Armenian authorities are aware of the recommendation of the Committee on the Rights of the Child that specialized juvenile courts should be established. The main reason given is the small number of trials of juveniles - 156 cases in 2008, according to the Department of General Investigation. There also is a general reluctance to establish specialised courts. In 2008 trial courts were separated into civil and criminal courts, but this measure was rescinded ten months later and all trial courts again became courts of general jurisdiction. In practice, however, most judges in trial court are specialized and handle only criminal or civil cases.
In the short term, the most practical way of ensuring that juveniles accused of an offence (and children involved in criminal cases as victims or witnesses) are tried by judges having special training in child development, child rights and related matters would seem to be designating one judge in each court to handle such cases. This could be done administratively, with no need for legislative action. The same kind of measure could be taken with regard to prosecutors. In both cases, there appears to be some receptivity to taking this step.
In the longer term, the effectiveness of designated judges and prosecutors in ensuring compliance with relevant principles and standards on the rights of juvenile offenders could be evaluated through the monitoring of trials of juveniles (and eventually other criminal trials involving children). The caseload of courts also could be examined with a view to assessing whether the ‘demand’ for a specialized court is sufficient to warrant the creation of one in the capitol, where more cases involving juveniles arise. The logical time to do this would be after sufficient time has passed to evaluate the results of further efforts to develop diversion and prevention programmes.
In 2004 one judge from each trial court participated in a training course on juvenile justice and alternative sanctions co-sponsored by UNICEF, the OSCE and ABA ROLI. The Judicial School also organized an in-service training course on child rights in 2008, in cooperation with UNICEF. A course on juvenile justice has been added to the curriculum for candidate judges, and twenty judges have graduated since it was added to the curriculum. There is, however, no regulation or policy requiring that each trial court have at least one judge having any special training in child rights or juvenile justice.
Portugal: voir la fin du document
Ireland/ Irlande: No. However, it should be noted that Part 7 of the Children Act 2001 provided for the establishment of a special Children Court for dealing with young offenders. The Court operates under additional procedural rules which take account of the special circumstances of child offenders. Notably, the Court has extensive jurisdiction over cases concerning juveniles. It may deal summarily with a child charged with an indictable offence, unless the charge is one of manslaughter or murder, rape and serious sexual assaults (offences for which the Central Criminal Court has exclusive jurisdiction). The proceedings before the Court are held in camera; only those persons listed in section 94 of the Children Act 2001 may attend. This list includes bona fide representatives of the Press; however, the Press are restricted in what they may report as they are prohibited from identifying the accused.
In addition, as mentioned above, there are members of An Garda Síochána who are specially trained to deal with young offenders, these are Juvenile Liaison Officers.
Russian Federation/ Féderation de Russie: It should be noted that work on the creation of juvenile courts within the system of courts of general jurisdiction is carried out in the Russian Federation. In a number of courts of general jurisdiction certain judges are selected who specialise in criminal cases of juvenile offenders. This can be regarded as a first step to creating juvenile justice.
Within the system of the Prosecutor General’s Office of the Russian Federation, it is provided that the duties of supervision over the enforcement of laws on juvenile and youth matters are assigned to certain prosecutors, or to a special unit.
Czech Republic/ République Tchèque: As it has already been specified above, the area of criminal law for young people was stipulated by a separate Act on justice in the matters of young people in the Czech Republic.
A special system of justice for young people also requires specialists who are able to ensure its problem free operation in practice. This applies mainly to specialised juvenile court, even if they were established within the scope of the existing system of general courts, and specialised other bodies active in criminal proceedings. Judges, public prosecutors, members of police bodies and officers of Probation and Mediation Service operating in criminal matters must have a special training for handling young people. In the proceedings against young people it is necessary to pay attention to the fact that interrogation, hearing and deciding of their criminal matters is entrusted to persons whose knowledge of the issues connected with education of young people will ensure fulfilment of the educational purpose of the proceedings.
Administrative ensuring of protection of children’s rights in the system of the Public Prosecutor’s Office is ensured by a model organisation order. The model organisation order determines the basic principles of the organisation, internal relations, performance of the prosecution administration and management of the prosecutions as a system of state authorities intended for representation of the state during protection of public interests in the matters entrusted by law to its competence and therefore it also applies to the area of protection of children and young people.
An internal regulation of the Public Prosecutor’s Office determines the specializations of the public prosecutors. Specialization is understood as the main orientation of the activities of the public prosecutor operating in the district, regional, higher or supreme Public Prosecutor’s Office. The public prosecutor settles matters according to its specialization. Specializations are divided into specialisations in the criminal section and specialisations in the non-criminal section.
In the district, regional and higher Public Prosecutor’s Office, there are criminal specializations for unlawful acts of young persons, acts committed by children under 15 which would otherwise be criminal offences and criminal offences committed on young people. There are also non-criminal specializations for social and legal protection of children and proceedings in the matters of children under 15 and young people not responsible for criminal acts.
Act on justice in the matters of young people stipulates that judges, public prosecutors, members of police bodies and officers of the Probation and Mediation Service acting in the criminal matters of young people must have a special training for handling young people.
Special education of judges, public prosecutors and officers of Probation and Mediation Service (and also assistants of judges and public prosecutors, legal probationers and senior officers of courts and Public Prosecutor’s Office) operating in the area of justice in the matters of young people is ensured by Ministry of Justice by means of its Judicial Academy.
It includes mainly mediation of knowledge from the area of criminology, development psychology, children’s psychiatry, special pedagogy and social work and increasing of specialist qualification of prosecutors, including deepening of specialisation determined by an instruction of general nature.
Education is organised in regular, quite short intervals, and the lecturers are not only selected judges, public prosecutors specialized in the particular topic but also policemen, experts, psychiatrists and psychologists specialising in young people, university professors with specialisation in law and pedagogy, officers and assistants of Probation and Mediation Service and other experts specialising in work with young people. The level of the education organised in this way can be assessed as very high.
Cyprus/Chypre: Our justice system does not provide for specialised public prosecutors for juveniles.
France: Oui , les procureurs et leurs substituts qui connaissent des procédures concernant les mineurs , doivent avoir une habilitation spéciale et les textes qu’ils appliquent résultent d’un texte de valeur législatif souvent remanié, appelé l’ordonnance de 1945 rappelant la primauté de l’éducatif sur le répressif .
Georgie/Georgia: There are no specialized prosecutors dealing merely with juvenile cases in Georgia. The Training Center of the Ministry of Justice organizes training on the juvenile justice related issues for prosecutors on general basis.
Apart from ongoing training, in line with the Juvenile Strategy and Action, the Ministry of Justice in cooperation with the United Nations Fund for Children (UNICEF) is planning specialized training for selected group of 50 prosecutors. These training would allow prosecutors to specialize in juvenile cases as well as practice the discretionary prosecution in the best interest of child (for the information regarding the discretionary prosecution please view below the information).
Lettonie/Latvia : No separate specialization of prosecutors in the realm of juveniles' rights protection exists, nevertheless in praxis the heads (head prosecutors) of the Prosecution Office institutions mostly arranges the work of Prosecutors under their supervision, taking into consideration the specific of respective criminal procedures, inter alia entrusting the Prosecutor's functions in cases where under-age offenders are involved, to one and the same prosecutors. No specific cooperation model with judicial authorities exist for common participation in the development of general policy regarding protection of rights of juveniles, nonetheless according to the Section 40 of the Criminal Procedure Law the Chairperson of District (City) Court in cases provided for by the Law and following statutory procedure gives assignment to supervise whether the human rights are complied with in the criminal procedure. According to the obligations and procedure provided for by the Criminal Procedure Law, investigation judge amid of other issues decides on application of security measure related with deprivation of liberty, as well as examines complaints regarding possible breaches of the human rights in the criminal procedure, including towards juveniles who has got rights to the defence. Hence the Prosecutor cooperates with the Judge in safeguarding of rights of juveniles within the frameworks of the respective criminal procedure and pursuant to the procedure provided for by the Criminal Procedure Law.
Moldova: In the Republic of Moldova there are no judicial bodies (courts, prosecution bodies) with exclusive jurisdiction to examine the crimes committed by minors, which is a future task. Meanwhile, specialization of the judicial bodies has a variety of procedural safeguards based on a strong psychological dimension and provides higher quality of justice. A possible way to improve the situation is specialized employees within existing bodies. By decision No. 39 of 22.11.2004 “on judicial practice in criminal cases concerning minors” the Supreme Court of Justice recommended that criminal cases against minors to be examined by a panel of judges composed of judges with experience, specialized in this area and appointed to by order of the Court Head to adjudicate such a cases.
Given the importance of the issue concerned, on 29.03.2004 General Prosecutor signed the order nr.54/21 “concerning activity of prosecutors in child rights protection and management of criminal prosecution in crimes committed by minors”. By the same order territorial prosecutors have to appoint a prosecutor responsible for application in the territory of legislation concerning minors, empowering them with special competences in this area. In the new conditions regarding measures to implement some legal norms provided by the Law nr.184-XVI of 29.06.06, and given the fact that under art. II of this Law, prosecution in case when crimes committed by minors, was placed under the exclusive competence of the Prosecutor’s office, so, prosecutors exercises prosecution in cases of minors, sustain the accusation in the courts in these cases, have the information on rights and fundamental freedoms of minors and take measures to combat and prevent juvenile delinquency.
Monaco : Au sein du Parquet Général un substitut est plus spécialement chargé des affaires concernant les mineurs tant victimes que délinquants.
Si aucune entité spécialisée comprenant procureurs et juges spécialisés pour les mineurs n’existe, le Juge tutélaire et le Parquet Général et plus spécialement le substitut chargé des mineurs travaillent en collaboration afin de rechercher les solutions les plus adéquates pour chaque mineur.
Allemagne/Germany : In Germany, there are specialised public prosecutors for juvenile offenders and for the protection of juvenile victims. They are organised in special units within the prosecution office, but not in special entities outside the prosecution service and not together with the juvenile court-system or juvenile judges.
Montenegro: - Adoption of a new Law on Juvenile Justice that provides special Prosecutor for juveniles is in progress. Within the State Prosecutor’s Office will be appointed Prosecutors for juveniles.
Republic of Macedonia/République de Macédoine : Yes, our criminal justice system provide for specialized Public Prosecutors for juveniles, entrusted with implementation of specific laws and procedures.
Hongrie: Dealing with juveniles requires special knowledge on the part of the authority, legal provisions of which are settled in ‘On juvenile prosecutors and juvenile courts’ in the Hungarian Criminal Procedure Code.
According to these regulations only juvenile prosecutors, appointed especially to this field of activity can act in criminal procedures against juvenile delinquents. Juvenile prosecutors act on four levels in the prosecution service.
The field of child- and youth protection is administered by the Independent Department of Child and Youth Protection, reporting directly to the Deputy of the Prosecutor General in criminal matters at the Office of the Prosecutor General; at the appellate chief prosecutor’s offices, county chief prosecutor’s offices, local offices, in designated district prosecutor’s offices and at the investigating prosecutor’s offices organisational by units under this name or by prosecutors delegated for this field of prosecution.
The tasks and competences of the juvenile prosecutor are detailed in the special decree of the Prosecutor General referred to in part 1/a.
Similarly, in criminal cases of juveniles juvenile judges are the competent authorities. In Hungary there is no separate juvenile court, but a specifically organised judicial division of the court of record, designated to administer juvenile cases, acting at local courts at the seat of the county court.
With regard to the effectuation of efficiency and the aspects of special educational needs the law provided for a council of special composition with an appointed judge to proceed in the first instance (in the first instance one of the associate judges is a pedagogist). In the first instance the presiding judge, on the second and third degree one of the members of the council is appointed by the National Council of Justice of Hungary. The Supreme Court is an exception to the latter rule. Violation of the above regulation is an absolute reason for annulment, since the court was not legally composed.
Juvenile prosecutors act at courts where the appointed juvenile judges administer cases. They do not form a “common specialized entity” from an organizational point of view, but due to their judicatory tasks they are on a daily cooperative term with each other.
Liechtenstein: In Liechtenstein, there are no specialized public prosecutors for juvenile offenders and for the protection of juvenile victims. All prosecutors have to the deal with these cases. But there are trainings open for all prosecutors, organized by the prosecution office together with the court an other players in this field; but there is – as mentioned above- a special juvenile court-system and there are juvenile judges.
Serbie: The specialized Public Prosecutors for Juveniles are provided by the system of licensing for juvenile cases. Specialized public prosecutors and judges does form the specialized entity.
Iceland : No, Iceland does not provide for specialised public prosecutors or judges for juveniles.
Albania/Albanie: From September 2007 there exist a specialized Department for juveniles within 6 major District Prosecution Offices (DPO). That Department is entrusted with exercising criminal action against minor offenders but not even with cases where minors are involved as crime victims.
There is no law or procedure entrusted specifically to be applied by that Department, thus the Department applies the same CPC as the other part of the DPO.
No, there is no any specialized entity on juvenile justice within the court.
2. Si oui comment les procureurs sont-ils formés, sélectionnés et quelle formation continue suivent-ils?
If yes, how are the public prosecutors educated, selected and trained?
Belgium/ Belgique: Les fonctions du ministère public auprès du tribunal de la jeunesse sont exercées par un ou plusieurs magistrats du parquet désignés spécialement par le procureur du Roi pour exercer cette tâche.
Croatia/ Croatie: Education of the State Attorneys for juveniles is conducted through targeted meetings organised by the Office of the State attorney General of the Republic of Croatia. State Attorneys for juveniles participate in those meetings as well as expert associates and discuss problems in working on cases of juvenile delinquency, protection of children and juveniles and younger adults with the aim of standardisation of practice in working on certain criminal offences, application of educational measures and juvenile imprisonment. Furthermore, education is also organised by the Ministry of Justice of the Republic of Croatia via seminars of the Judicial Academy. Lecturers from the country and from abroad participate in these seminars and among other things discuss and acquaint themselves with the work of State Attorneys for Juveniles and Juvenile courts abroad.
Spain/ Espagne: There is only a Public prosecutors body. Prosecutors who are to deal with juveniles are selected from this unified body. Process of selection is based on specialization. Members of Public prosecution who apply and prove specific knowledge in Juvenile Justice are selected to this task. To prove specific knowledge is necessary to have taken part in special training activities, or to have done specific research on the subject, or to have given lectures on the subject etc. There are also continuous training activities especially designed for these prosecutors.
Estonia/ Estonie: The prosecutors who are specialised in criminal offences relating to minors have obtained regular higher education in law, but they are provided with special trainings in Estonia as well as abroad; for all prosecutors in Estonia who are specialised in minors, joint round table meetings are held on a regular basis where the problems arising from work are discussed and which involve presentations given by various experts (e.g. psychologists, pedagogues, etc.). Prosecutors work in close cooperation with police units specialised in minors.
Finland/ Finlande: …
Greece/ Grèce: Voir réponse à la question 2
Italie: The recruitment process is the same for all judges and public prosecutors. When public prosecutors (or judges) apply to be appointed as juvenile prosecutors (or judges), the High Council for the Judiciary evaluates the professional skills –and particularly the specific qualification– of the candidates.
Continuous training is provided for public prosecutors (and judges) also in the field of juvenile justice.
Netherlands/ Pays-Bas: Specialised public prosecutors for juveniles must meet specific requirements and have followed specific courses.
Poland/ Pologne: Currently, it is not foreseen in this field a special course during the professional training to become a prosecutor, or in practice of the prosecutor. Occasionally, such training is provided by the National School for Judges and Prosecutors.
Not in each unit of the prosecution service in cases of juveniles a prosecutor specialized in this field is involved. In larger units of prosecution service, a prosecutor engaged in dealing with civil and administrative matters also deals with cases of juveniles.
Slovak Republic/ République Slovaque: As mentioned above in Point 2/, in 2008 prosecutors specialised in juvenile crime within the Family and Youth Protection Division were appointed at all levels of the Prosecution Service on the basis of their professional qualities and experience. Each specialised prosecutor is obliged to improve his professional knowledge on their own, and at the same time to attend all training courses organized by the Judicial Academy or by the General Prosecution Office, or by Regional Prosecution Offices. Prosecutors are trained by the Judicial Academy in the context of the General Training Scheme of the Judicial Academy, which is also aimed at judges and candidates for judicial appointments. The General Prosecution Office on a regular yearly basis organizes its own seminars focused on topical problems arising in the course of the practice of the prosecutor´s profession, which also involve family and youth protection. For example, on 12th and 13th November 2009 a seminar for prosecutors specialised in juvenile crime and crimes against children was organised, focused on “Procedural Status of Juvenile Offenders in Criminal Proceedings, Legitimacy of Procedures in Juvenile Convictions”. As outlined in the Professional Training and Continuous Education Scheme of Prosecutors for the year of 2010, there has been another training course scheduled for 20th and 21st September 2010.
Romanie/ Roumanie: The National Institute of Magistracy is the main institutionalized structure for the training and specialization of judges and prosecutor.
According to article 103 paragraph (1) of the Law No.304/2004, The National Institute of Magistracy shall be the public institution (…) placed under the co-ordination of the Superior Council of Magistracy, that achieves the initial training of judges and public prosecutors, the continuous professional training of magistrates in office (…).
The selection is achieved at the level of prosecutor’s offices, according to the training and specialization and personal option.
According to article 95 paragraphs 2 and 3 of the Law No.304/2004: “The head of each prosecutor’s office shall designate prosecutors within sections, services and offices, according to their training, specialization and capabilities.
(3) The head of each prosecutor’s office shall assign files to the prosecutors, taking into account their specialization.”
The training is achieved through the 3 forms of professional training: centralized training, decentralized training and individual training.
Slovenia/ Slovénie: Slovenian state prosecutors have common education as a prosecutor, which is upgraded with special education, provided by programs of specialization in different Slovenian universities. Number of prosecutors has passed this program; the others are experienced prosecutors with quite long practice in this area. Every year there are organized special seminars in the framework of our institution. On other side our prosecutors attend different conferences and seminars organized by Non-governmental organizations, ministries, etc.
Sweden/ Suède: The prosecutors have no specific education but are regularly passing training courses in the field and should be interested in and appropriate for the task. The investigations should always be executed as fast as possible and the law prescribes specific time limits.
Turkey/ Turquie: As mentioned above the Chief Public Prosecution Services public prosecutors working in the juvenile bureau should be preferably specialized in juvenile law with training in the fields of child psychology and social services
Judges and Public prosecutors to be assigned at the courts, and the social workers and probation officers appointed at probation and assistance centre directorates shall be provided with training on subjects such as juvenile law, social service, child development and psychology in line with the principles set forth by the Ministry of Justice during candidateship periods.
It shall be ensured that those appointed to serve at courts receive in-service training oriented to provide them with the opportunity to specialize in their fields and self-development.
The principles and procedures for pre-service and in-service training are determined with a regulation. ( Article 32- Juvenile Protection Law (No: 5395) )
England and Wales/ Angleterre et pays de Galle: All public prosecutors are appointed following fair and open competition, in accordance with civil service policy. Youth specialist prosecutors are public prosecutors who have at least two years general prosecution experience and have additional training in youth offenders. The training is a three day course that is accredited by both branches of the legal profession; the Law Society and the Bar Council. Youth specialists usually volunteer for this role because they have an interest in children and young people. They usually carry out their youth specialist role in addition to their adult work.
Youth specialist prosecutors receive regular updates on youth justice initiative through the constant revision of the legal guidance on youth offenders, an annual youth justice conference that alerts prosecutors to new and imminent developments in youth justice and twice yearly seminars.
Scotland/ Ecosse: As mentioned before, there are no specialist prosecutors in this area. However thorough guidance is provided to all public prosecutors and general advocacy training is provided, with specific guidance and support in developing the skills necessary to deal with cases involving child accused.
Additionally training is provided to prosecutors on how children should be treated as vulnerable witnesses in the court process, which can be adapted when dealing with children as an accused.
Ukrain/ Ukraine: Voir réponse à la question 2
Armenia/ Arménie: Training on the rights of children has been institutionalized in the Police Academy. Annual in-service training is obligatory for both judges and prosecutors, and issues concerning juvenile justice have been incorporated into such training. Prison staff also have participated in ad hoc training on the rights of children.
Portugal: voir la fin du document
Irland/ Irlande: Not applicable
Russian Federation/ Fédération de Russie : Pursuant to Article 43.4 of the Federal Law “On the prosecution Service of the Russian Federation”, in order to provide high-level professional qualifications of the staff, there functions a system of permanent training and professional development for its officers which includes individual and group training in accordance with special plans, probation in higher-level prosecution bodies, scientific and educational institutions of the prosecution service, training at regional training centres and institutions of advanced training.Professional development is a service duty for the prosecutors.
Czech Republic/ République Tchèque: Voir réponse à la question 2
France: Comme tous les magistrats français, les procureurs et substituts sont recrutés sur concours et formés à l’Ecole nationale de la Magistrature . Il sont astreints à des actions de formation continue obligatoire, soit nationales, soit sur leurs lieu d’affectation tout au long de leur carrière et les formations suivies peuvent servir de critères de nomination au long de leur carrière .
Georgie/Georgia: For the extensive training mentioned above, the 50 prosecutors will be elected based on their previous experience; priority will be given to those prosecutors who have been working on juvenile cases previously. Extensive training will focus on following issues:
· General overview of international standards on Juvenile Justice;
· Role of child development specificities while going through the justice procedures;
· Psychological areas to be considered while dealing with juvenile cases;
· Special skills to communicate with juveniles,
· Assessing of the reliability of the information delivered by the juvenile
· Special skills on handling juvenile cases in court (including innovations considered by the new Criminal procedural Code – e.g. jury trial and juvenile cases);
· Special techniques of interviewing children in conflict with the law (including victims, witnesses and offenders);
· Specific issues related to interrogation and cross-examination,
· General overview of the issues related to juvenile victims;
· Motivation and specific requirements of the juveniles;
· Protection of the best interests of the child in the justice system
Lettonie/Latvia : Prosecutors actively participate in the seminars and conferences organized by the different institutions and organizations, including that ones devoted to protection of the rights of juveniles. In most cases such seminars and conferences are organized together with the Judges and in the course of such training are discussed actual problems and possible solutions for drafting of legal acts, as well as for improvement of existing praxis in protection of the rights of the State and persons (including juveniles) are looked for.
Moldova: Under Orders mentioned in p.2 in every Prosecutor’s Office have been appointed one of the most qualified prosecutor who have experience at least 5 years of activity in the prosecution for investigation of the cases involving juvenile offenders and coordination of work concerned this.
In view of raising professional skills of prosecutors in protecting children's rights, preventing and combating juvenile delinquency, General Prosecutor's Office jointly with international organizations in this field and National Institute of Justice permanently organized participation of prosecutors and judges in training workshops on juvenile justice.
The methodical recommendations on application of legislation on child rights in the criminal prosecution of juvenile offenders have been sent to the specialized prosecutors.
For collaboration with the NGO sector General Prosecutor's Office cooperates with international organizations and NGOs concerned with human and child rights protection, among which may be referred to the U.S. Embassy in Moldova, OSCE Mission, the Mission of International Organization for Migration, United Nations Children's Fund - UNICEF, the Council of Europe, the International Center o Women Rights Protection and Promotion "La Strada", Center for Prevention of Trafficking in Women, the Program on International Migration (MIGRANT) and International Program on Elimination of Child Labor (ILO-IPEC Moldova).
Monaco : Les procureurs en poste à Monaco sont soit des magistrats français détachés, soit des magistrats monégasques ayant tous suivi les enseignements de l’Ecole Nationale de la Magistrature française et bénéficiant des actions de formation continue offertes par cette école, selon leurs vœux et leurs besoins.
Allemagne/Germany : According to the YCA, the Chief Prosecutor of every prosecution office has to appoint specialised prosecutors for juveniles. They should be capable and experienced in the education and bringing-up of children and juveniles. Youth prosecutors are permanently trained in special training programs in all fields of science and society, including social developments and questions of psychology. This year, for instance, there are training courses on the treatment of victims as witnesses, violence within the family, stalking, child abuse, child protection in general, family and custodian ( care) law, protection of children during investigation and proceedings, investigation in the field of drugs and crime, treatment of young intensive offenders, cooperation with police, court, youth authorities, juvenile delinquency and crime prevention, best practices in the every-day-work of youth-prosecutors, new developments in the youth law field, psychiatry and criminal law, psychology of witnesses).
Montenegro: The Prosecutors are going to be educated and trained with particular regard to their new function as a Prosecutors for juveniles. Supreme State Prosecutor’s Office takes account of a continuous education of Prosecutors, as well as of the Prosecutors involved with juveniles.
Republic of Macedonia/République de Macédoine : They are elected from the ranks of prosecutors and have special educations for the implementation of the Law on juvenile justice. Public Prosecutor at least four to ten days during the year is following specialized training for Juvenile offenses in the country or abroad.
Hongrie: It is the juvenile prosecutor who acts in criminal procedures against juveniles. This is essential for a professional and successful procedure and also for the enforcement in practice of special regulations concerning juveniles.
Apart from legal studies this proficiency and competence has several components. Theory (pedagogy, psychology) and practice in fighting juvenile delinquency and also knowledge of life and qualities indispensable for effective child and youth care are required.
At chief prosecution offices and at local prosecution offices juvenile prosecutors are directly subordinate to and supervised by the deputy chief prosecutor responsible for criminal law or the head of the local prosecutor’s office.
Basic skills necessary for this specialized work can be acquired during the trainee time required for becoming a prosecutor (as assistant public prosecutors and prosecutorial law secretaries). During this time assistant public prosecutors have the possibility to work with experienced juvenile prosecutors of great expertise which enables them gain the necessary knowledge essential for this field of prosecution. Future prosecutors take part in trainings at the chief prosecutors’ offices and also in trainings organised for preparation for the special legal examination organised by the Prosecutors’ Training Centre of the Republic of Hungary. In order to make sure, that only professionally qualified prosecutors get appointed to juvenile prosecutors, it is necessary to obtain the assent of the head of the Independent Department of Child and Youth Protection prior to being designated a juvenile prosecutor. After their nomination for juvenile prosecutors, prosecutors are obliged to take part in further trainings organised by the Office of the Prosecutor General.
Liechtenstein: See Q. 2
Serbie: Consultations, seminaries and special expert’s literature.
Iceland : No special training takes place.
Albania/Albanie: According to an Order issued by the General Prosecutor in October 2007 it is the Chief of the District Prosecution Office who appoints the prosecutors on the Department for Juveniles, based on their experience and training in dealing with juvenile crimes. As a rule their training process is the same with that followed by other prosecutors of the DPO, but of course it takes into consideration the needs for specialization.
3. S’agissant des mineurs victimes d’infractions, les procureurs ont-ils à leur disposition des procédures et des moyens particuliers, notamment pour le recueil des témoignages ? Par ailleurs, ont-ils toute latitude dans leurs choix d’action publique ou leurs compétences sont-lles parfois limitées par la loi, ar exemple quant au choix de mesures alternatives aux sanctions pénales ou aux réquisitions de détention pour des mineurs déjà condamnés ou récidivistes ? Ces choix d’action publique, pour la prison, pour certains types de peines, sont-ils également différenciés par la loi en fonction de l’âge du mineur en cause ? Si oui, veuillez préciser.
As regards victims of offences, can the public prosecutors apply specific procedures and means, in particular to collect testimonies? Moreover, are they free to choose ways of prosecuting or are their powers sometimes limited by the law, for instance as regards the choice of alternatives to prosecution or of the prison sentences requested for juveniles already condemned or second offenders? Does the law specify according to the juvenile concerned between these prosecution choices, for prison, for some types of sentences? If yes, please specify.
Belgium/ Belgique: A l’égard des mineurs victimes d’infractions, le Code d’instruction criminel contient un chapitre spécifique relatif à l’audition des mineurs victimes ou témoins de certains délits (Chap. VIIIbis, art. 91bis à 101, C.I.Cr.).
Un mineur victime ou témoin de certaines infractions énumérées à l’article 91bis du Code d’instruction criminelle, doit se faire accompagner par la personne majeure de son choix lors de toute audition, sauf si l’intérêt du mineur s’y oppose.
Le procureur du Roi ou le juge d’instruction peut ordonner l’enregistrement de l’audition. Dans des circonstances graves et exceptionnelles, ils peuvent procéder à l’enregistrement audiovisuel de l’audition du mineur. Dans ces deux cas, lorsque le mineur est âgé de plus de 12 ans, son consentement est requis. Si le mineur a moins de 12 ans, il est seulement informé de l’enregistrement de son audition.
Au niveau de la procédure, l’audition enregistrée a lieu dans un local spécialisé en présence éventuellement d’un ou plusieurs membres du service technique et d’un expert psychiatrique ou psychologue. L’interrogateur explique au mineur les raisons de l’enregistrement ainsi que la possibilité qui lui est offerte d’interrompre l’enregistrement. Un procès-verbal de l’audition enregistrée est établi.
En ce qui concerne les mineurs ayant commis un fait qualifié infraction, il y a 3 mesures que peut proposer le parquet (articles 45ter et 45quater de la loi du 8 avril 1965):
è Classement sans suite, éventuellement accompagné des modalités suivantes (pas de conditions d’âge):
- Rappel à la loi
Le procureur a la possibilité de convoquer le mineur et ses représentants légaux pour leur adresser un rappel à la loi. Cette convocation dans les bureaux du magistrat permettra au mineur de faire valoir ses moyens de défense devant le magistrat et d’éventuellement apporter plus de précisions quant aux faits qui lui sont reprochés. Ses représentants légaux, également convoqués, auront certainement l’occasion d’obtenir plus d’informations quant aux faits reprochés à leur enfant.
Le procureur peut adresser à l’auteur présumé du fait qualifié infraction une lettre d’avertissement dans laquelle il indique qu’il a pris connaissance des faits, qu’il estime ces faits établis à charge du mineur et qu’il a décidé de classer le dossier sans suite. Une copie de cette lettre est transmise aux père et mère, au tuteur du mineur ou aux personnes qui en ont la garde en droit ou en fait.
è Médiation (pas de conditions d’âge, mais d'un point de vue méthodologique, il est conseille de se limiter aux jeunes qui ont douze ans ou plus au moment de la proposition).
La médiation permet au jeune, aux personnes qui exercent l'autorité parentale à son égard, aux personnes qui en ont la garde en droit ou en fait, ainsi qu'à la victime (si celle-ci est mineure, ses parents et/ou les personnes civilement responsables sont également invités) d'envisager ensemble et avec l'aide d'un médiateur neutre, les possibilités de rencontrer les conséquences notamment matérielles et relationnelles d'un fait qualifié infraction.
Un médiateur indépendant instaure un processus de communication entre la victime et le jeune. L'attention se porte sur la réparation du dommage subi par la victime. Le jeune prend activement ses responsabilités dans la réparation du dommage, qu'il soit de nature financière ou morale. Il se peut que les personnes concernées se réunissent pour une discussion au cours de laquelle des questions directes peuvent être posées et les expériences peuvent être échangées.
Si les parties ne trouvent pas d'accord, cela ne signifie cependant pas nécessairement que la médiation a échoué. Malgré le fait que les personnes concernées n'aient finalement pas trouvé d'accord, la médiation peut avoir été utile. La victime peut par exemple avoir reçu une réponse à sa ou ses question(s) et le jeune peut également mieux réaliser les conséquences de son acte.
Le stage parental a pour objectif de remobiliser les parents qui manifestent un désintérêt caractérisé à l'égard du comportement délinquant de leur enfant afin de les aider dans les tâches éducatives dans lesquelles ils se montrent déficients, tout en évitant la moindre stigmatisation ou répercussion négative sur l'autorité parentale.
Croatia/ Croatie: In criminal proceedings where children or juveniles are injured persons – especially in criminal offences against sexual freedom and sexual morality and criminal offences against marriage, family and youth, when a witness examined is a child who has been injured by the criminal offence, the examination is carried out with the assistance of a psychologist, pedagogue or other expert person. An investigating judge shall order that the examination be video-taped and audio-taped. The examination shall be carried out in the absence of the judge and parties in a room where the child is situated in such a manner that the child can be questioned by the parties through the investigating judge, psychologist, educator or other expert person. This manner of examination is prescribed by Article 238 of the Criminal Procedure Act. Minutes are made on examining and it is read during the trial, and tapes are reproduced, and in that way secondary victimisation of the injured child are avoided. If an injured child is questioned for the first time during the trial, panel may decide that the questioning be conducted by the president of the panel outside the trial, and such questioning will be conducted in the manner described above. During the questioning of a juvenile, especially if a juvenile is an injured person, questioning will be conducted in a manner which will enable avoidance of damaging effects to juvenile’s psychiatric state.
Law on Juvenile Courts enables a State Attorney not to initiate criminal proceedings although a reasonable suspicion, that a juvenile committed a criminal offence for which a prison sentence of 5 years or a fine are prescribed, exists if he/she thinks that there would be no purpose in conducting criminal proceedings against a juvenile taking into consideration nature of a criminal offence and circumstances in which the offence was perpetrated, prior life of a juvenile and his/her personality characteristics. Furthermore, State Attorney may condition the decision not to initiate proceedings by readiness of a juvenile to fulfil obligations prescribed by Article 64 of the Law on Juvenile Courts. When a juvenile fulfils the obligations (according to his/her own capabilities of amending or compensating the damage caused by the offence, become involved in the work of charity organizations or work of community service, undergoes treatment of addiction or becomes involved in individual or group work within Youth Counceling) under cooperation and supervision of Social Service, State attorney will make a final decision on non-initiating of proceedings. Also, when execution of penalty or educational measure is underway or these sanctions became final, or a juvenile, by the decision of Social Service has been placed in Social Service institution, State attorney may decide not to initiate proceedings for other criminal offence a juvenile committed if conducting proceedings and pronouncing sanctions for the offence would not bear meaning taking into consideration the severity and nature of the offence and motive of commitment.
Provisions on opportunity of conducting criminal proceedings are meaningfully applied in criminal proceedings against younger adults, if it is establish that it is possible to take into consideration the application of juvenile criminal law.
As it is already mentioned above, juvenile imprisonment may be pronounced to older juvenile for criminal offence for which a prison sentence of five (5) years or more is prescribed, if in regard to the nature and severity of the criminal offence it is necessary to pronounce a sentence. Juvenile imprisonment cannot last less than six months or longer than five (5) years and it is pronounced in full years and months. Juvenile imprisonment may last up to ten (10) years for criminal offence for which long-term imprisonment is prescribed or for committing concurrently adjudicated criminal offences (at least two) for which prison sentence longer than 10 years is prescribed. In deciding on the imprisonment, the court will take into consideration all circumstances affecting the range of the sentence (Article 56 paragraph 2 of the Criminal Code – A General Rule on the Selection of the Type and Range of the Punishment) having in mind the degree of maturity of a juvenile, time necessary of his/her upbringing, education and vocational training, and the sentence may be shorter in regard to degree of guilt if it will be enough to achieve the purpose of punishment. A juvenile convicted to juvenile imprisonment may be released on parole if he/she served one third of the sentence, but not before he/she spent six months in prison institution. During parole court may pronounce educational measure of enhanced supervision. Parole lasts until the time period for which the sentence was received. It can also be revoked if a convicted juvenile, during parole, commits one or more criminal offences for which a prison sentence in duration of six months or juvenile imprisonment of six months are prescribed. Court may also pronounce a sentence that juvenile is guilty of committing criminal offence and at the same time hold from pronouncing juvenile imprisonment if the court feels that the possibility of subsequent punishment would restrain the perpetrator from committing further criminal offences. Besides the judgement court may also pronounce an educational measure of enhanced care and supervision or one or more special obligations. After at least one year of probation court may pronounce final withholding from juvenile imprisonment if the new facts confirm that the juvenile will not commit further criminal offences. Before making such decision the court will question Social Service representative. If a juvenile whose juvenile imprisonment sentence had been withheld, is sentenced for committing other criminal offence or received educational measure during probation, court will pronounce a judgement for criminal offence priory committed criminal offence, if that, considering the new sentence or educational measure would be necessary to divert the juvenile from committing further criminal offences. A juvenile may receive a sentence for criminal offence committed before if he/she, regardless of the explicit warning of the court refuses to fulfil special obligations or constantly opposes conducting educational measure he/she received.
Denmark/ Danemark: The Danish Criminal Code does not prescribe the use of specific sanctions for juveniles in connection with specific offences. As described under question 5 special sanctions for juveniles exist and are used by the court when the conditions for using them are fulfilled.
According to DCC, however, the prescribed penalty for a crime can be lowered if the offender was less than 18 years old when he committed the crime. Furthermore, the penalty in respect of such offenders may not exceed imprisonment for eight years.
As regards child victims a video recording of the police interrogation of the child can and is (especially in sexual abuse cases) used as evidence in court. Video recordings are used when child victims are 12 years old or less, but can if needed also be used in relation to child victims who are older than 12 years. As a general rule, however, children who are 12 years or older have to give evidence in court. In these cases the prosecutor can request the court to decide on a number of measures that will make the giving of evidence less stressful for the child. For instance, the court can make a decision on proceedings behind closed doors, on reporting restrictions, on prohibition of the publication of names of the defendant, to the effect that the defendant shall leave the courtroom during the child’s testimony, or that the child’s address and/or address must not be disclosed to the defendant.
Spain/ Espagne: Public prosecutors are empowered to end the procedure without sanctions. They are also authorised to end the procedure through mediation or other restorative agreements.
Public prosecutors have an important degree of discretion, but this discretion is limited, even prohibited when the object of the procedure is a serious crime.
For the most serious crimes (such as terrorism, assassination, rape and similar) is compulsory to impose a sanction involving deprivation of liberty. Nevertheless, General Prosecutor Guidelines authorise even in these cases, to promote probation to minors of 14 and 15 years old if justified.
Estonia/ Estonie : A prosecutor may collect testimonies independently or with the assistance of investigative bodies but witnesses and victims who are below fourteen years of age are interrogated with the participation of a child protection official, social worker, or psychologist. A victim support specialist, who has counselled the victim, may also be involved in the interrogation. Witnesses and victims who are minors are generally interrogated in an interrogation room for minors, which is furnished with furniture and recording systems that consider the age of the child. In case of sexual offences and offences against the person, minors below 14 years of age are not interrogated more than once unless it is inevitable; if possible, minors who are victims in sexual offences and offences against the person are not summoned to court to give testimony directly for the second time if this may bring them new suffering. In such case, video recordings are being used.
Moreover, are they free to choose ways of prosecuting or are their powers sometimes limited by the law, for instance as regards the choice of alternatives to prosecution or of the prison sentences requested for juveniles already condemned or second offenders? Does the law specify according to the juvenile concerned between these prosecution choices, for prison, for some types of sentences? If yes, please specify.
Prosecutors are formally not restricted by the law when choosing a punishment or sanction to be imposed on a minor, and the law does not connect it to the degree of the criminal offence or to previous punishments. Thus, the decision of the prosecutor is based on the circumstances characteristic to the person, on the proposal of the probation supervisor, on the opinion of the legal representative regarding the punishment or sanction, on whether the juvenile committee has previously imposed sanctions on the person, and on which effect such sanctions have had.
In all cases, the prosecutor may choose between the following options:
1. Terminate the criminal proceedings and send the materials to the juvenile committee of the minor’s residence (a special committee which deals with the problems of young people at the local level and is not a part of the court system). Juvenile committees may impose the following sanctions: admonition; sanctions concerning the organisation of study; referral to a psychologist, addiction specialist, social worker, or other specialist for consultation; obligation to live with a parent, foster parent, guardian, or in a family with a caregiver, or in a children’s home; community service; surety; participation in youth or social programmes or medical treatment; sending to a school for pupils who need special treatment due to behavioural problems. Before sending the materials to the juvenile committee, the prosecutor will explain to the minor and his or her legal representative the essence of the act with criminal elements and the grounds for terminating criminal proceedings. The juvenile committee will be sent a criminal file or selection of materials to the extent necessary for the juvenile committee for choosing the right sanction. Such measures are not entered into the punishment register of the person.
2. Forward the materials to a court, which may impose the following alternative sanctions on the minor (will be entered into the punishment register):
2) subjection to supervision of conduct;
3) placement in a youth home;
4) placement in a school for pupils who need special treatment due to behavioural problems.
3. Bring charges and request a formal criminal sanction for the minor, e.g. a pecuniary punishment or imprisonment. Requesting a prison sentence to a minor must be deliberated by the prosecutor and exceptionally applied when choosing an alternative type of punishment is not justified.
Finland/ Finlande: The testimony of a victim of an offence who is under 15 years of age may be received in court for probative purposes without hearing the victim in person in court. Section 11 of chapter 17 of the Code of Judicial Procedure prescribes that if a statement given in a pre-trial criminal investigation by a person who has not reached the age of 15 years (or a person who is mentally incapacitated) has been recorded on a video recording device or on a comparable video and audio recording, the statement may be admitted as evidence in court if the defendant is provided with an opportunity to present questions to the person being heard.
Under section 21 of chapter 17 of the Code of Judicial Procedure, a person who has not reached the age of 15 years or who is mentally incapacitated may be heard as a witness or for probative purposes if the court deems this appropriate and if
1) hearing him or her personally is of central significance to the clarification of the matter; and
2) hearing the person would probably not cause said person suffering or other harm that could injure him or her or his or her development.
Where necessary the court must appoint a support person for the person to be heard.
Greece/ Grèce: By virtue of the dispositions of Law 3625/2007 (Official gazette A’290/24.12.2007) by which the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography has been ratified, adopted by Resolution 54/263 (25th May 2000) and by virtue of the dispositions of Law 3727/2008 (Official gazette A’257/18.12.2008) by which the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, adopted in 2007 in Lanzarote, Spain, has been ratified, many new dispositions have been introduced in the Greek penal law concerning the protection of minor victims of crimes against personal and sexual freedom during penal procedure. In particular, the following innovations have been established among others: the obligation to register the deposit of the minor victim during the preliminary proceedings at an electronic audio-visual medium, so that its electronic presentation may replace the physical presence of the minor victim during subsequent stages of the procedure; the obligatory presence and preparation of the examination of the minor victim by a child psychologist or child psychiatrist who collaborates with the investigation officers and the judicial officers, drawing up the relative report (article 226A Code of Penal Procedure); holding investigation for the above minor victims’ cases in absolute priority; their trial by a higher court even in the first instance, that is the Three-Judges Felonies Court of Appeal, in which no jury participates, but only ordinary judges; and the brief (6 months) determination of the hearing date of these cases. The Minors Public Prosecutor competencies and duties, both during the preliminary investigation and the main procedure in the Minors Court, do not present differences from those provided for adult perpetrators, with the exceptions already mentioned and in particular with the possibility of applying the disposition of article 45A Penal Code. Both for adults and minors, penal prosecution is mainly exercised ex officio except from the cases for which the filing of a complaint is required. Bending down of the principle of legality is however provided for, through the power of Public Prosecutor to refrain from exercising penal prosecution in case of misdemeanours or minor offenses, according to article 45A Code of Penal Procedure.
Italy/ Italie: Public prosecutors can examine through protective methods young witnesses who are the victims of crimes. They can be helped by specialised experts (e.g. psychologists, infantile neuropsychiatrists etc.). These methods are always used with children who are victim of sexual abuse. Every public prosecution office for juveniles has also a specialised criminal investigation unit.
Due to the mandatory nature of the criminal action in the Italian system, the public prosecutor has strict limits for his/her choices, defined by the law. Every choice is subject to judicial control. When the public prosecutor considers a crime “slight” and the illicit conduct of the young defendant as “occasional”, he/she can request a non suit judgement “for criminal irrelevance of the fact” (but the judge can disagree and order the public prosecutor to prosecute).
Another possibility for the public prosecution is to ask the court to suspend the proceedings for a sort of probation. The positive result of the probation (which can last up to three years) extinguishes the criminal offence.
Netherlands/ Pays-Bas: Witnesses and suspects make statements to the police, the examining magistrate (rechter commissaris) and the courts. Witnesses are summoned and must appear, otherwise they run the risk of being committed for failure to comply with a court order. Suspects have the right to remain silent.
If there is sufficient evidence, the public prosecutor is free to decide whether or not to prosecute (the discretionary principle). He may choose from a range of alternative forms of disposal, such as referral to the HALT Bureau (where young offenders are given the chance to make amends by repairing damage caused etc), or imposing a community service order or course of study and/or a fine in lieu of prosecution. In making this choice, however, public prosecutors are bound by the policy rules laid down by the Public Prosecution Service which recommend certain forms of alternative sanction depending on the circumstances. In the interests of uniformity, these policy rules are widely observed. For persistent offenders alternative sanctions are often no longer an option.
Poland/ Pologne: In cases when a juvenile is responsible as an adult under the Penal Code, the general standards of the Code of Criminal Procedure for the accused are applied.
There are certain differences for hearing an injured person and witness who not completed 15 years at the time of the prohibited act. According to the Article 185a and 185b of Polish Code of Criminal Procedure, they should be heard by the court with the participation of an expert psychologist.
Slovak Republic/ République Slovaque: Criminal proceedings and the status of the prosecutor therein are subject to the general principle that applies also to the proceedings involving juvenile offenders, being the principle of legality. Its purpose is to make sure that all offences, of which the law enforcement agencies are aware, will be duly and fairly investigated regardless of whether the police want to investigate them, and if necessary, other formal actions will be taken to prosecute and finally dispose of such cases provided that all statutory requirements have been duly met. The police and the Prosecution Service as the authorities in charge of investigation and prosecution are obliged to investigate and prosecute criminal activities and identify perpetrators. The prosecutor supervises legality of actions taken prior to the commencement of criminal proceedings and at the pre-trial stage. He provides guidance to the police and instructs the police on some procedures to be followed, he supervises individual actions taken by the police through being present in person, or takes the action himself where necessary. The Prosecutor can overrule any unlawful or unjustified decision, he may return the matter to the commanding police officer and ask him to provide any additional information, or he may reallocate the case to any other police officer. These prosecutors’ rights may be exercised in all pending cases. The prosecutor may be present at the interviews of juvenile victims adversely affected by the crime, or he may as well take the initiative and interview victims himself. The interviewing of the person below the age of 15 as a witness in situations, where his evidence and deposition as to his knowledge of the criminal offence, offender or facts in issue relevant to the investigation could have an adverse effect on the witness´ mental or moral development, needs to be conducted very carefully and in such a way (mainly in terms of oral evidence presented) that no other repeated interview will have to take place at any later stage of the proceedings. The law requires the presence of a qualified teacher, any other person having experience with the upbringing of youth, or any expert who is able to supervise the proper conduct of the interview. At the pre-trial stage, such a witness may be questioned and interviewed again only with the prosecutor´s consent. If the interviewed witness is below the age of 15 and if the case involves the offence committed against the relative, adopted child, foster child or child placed in the residential care facility, or if based on the circumstances of the case it may be reasonably assumed that in any repeated interview the person below the age of 15 could distort the reality, or if it may be reasonably assumed that any repeated interview might adversely affect the witness´ mental and moral development, the interview must be conducted by using technical audio-visual facilities; however, such person may be interviewed again at any later stage of the proceedings only exceptionally.
Principle of legality binding on the prosecutor is modified by the principle of opportunity. The Criminal Procedure Code defines cases and situations, in which the prosecutor is not allowed or cannot prosecute offences regardless of the age of perpetrator.
No criminal charges may be brought if
§ Offences were committed by persons, who are not subject to the jurisdiction of law enforcement agencies and courts in criminal proceedings
§ All requirements have been met for the inadmissibility of criminal prosecution (e.g. limitation of actions in criminal proceedings)
§ Victims do not give their consent to prosecution
§ Prosecution would be in conflict with international treaties or decisions of international organizations, which are binding on the Slovak Republic.
Under relevant provisions of the Criminal Procedure Code the prosecutor may exercise his discretion and decide that he will not bring criminal charges against the perpetrator on legitimate grounds established by virtue of law; this is the platform for
§ Dismissal of the case before bringing criminal charges on the grounds of their obvious inexpediency and due to the fact such dismissal is preferable to prosecution
§ Dismissal of the case where the likely penalty for the original low-level offence if the case were to proceed to the court is insignificant when compared to the penalty already imposed on the perpetrator under a final court judgement for any other offence, or dismissal of the case because a final and conclusive judgment has been rendered by a foreign court on the original offence, or if a final decision has been made in other than criminal proceedings and such decision can be regarded to be the sufficient and appropriate way to address the offender´s behaviour
§ Dismissal of the case which involves assisting offender provided that other legal requirements have been met
§ Conditional caution provided that other legal requirements have been met
§ Conditional caution administered on assisting offenders provided that other legal requirements have been met
§ Reconciliation in criminal proceedings and dismissal of the case provided that other legal requirements have been met.
Theoretically speaking, these can also include rather a new procedure which may take place under the Criminal Procedure Code, being plea bargaining.
The above-mentioned range of options is also applied in criminal proceedings, which involve juvenile offenders. The Slovak Criminal Procedure Code does not have any provisions that would apply specifically only to juvenile offenders.
Romania/ Roumanie: The minor victims of offences are heard by the prosecutor according to the common rules of procedure, ensuring the non-public character of the procedure and the observance of the human dignity.
The law no. 211/2004 on the measures of ensuring the protection of victims of offences provides as special measures: psychological counseling of the victims of certain offences and others forms of assistance for the victims of offences, upon request, ensured by the services of victims’ protection and offenders’ social reintegration, such as free legal assistance granted to certain categories of victims, upon request.
A special protection measure for the victims of offences is the “Interdiction to come back to the family residence for a determined period,” provided under art. 1181 of the Criminal Code.
According to these provisions, “When the person sentenced to at least one year of imprisonment for battery or any other acts of violence causing physical or mental suffering, perpetrated against family members, if the court of law ascertains that his/her presence at the family residence seriously jeopardizes the other family members, it may take against this person the measure to ban his/her going back to the family residence, at the request of the injured party. This measure may be taken for a duration of up to two years.”
Prosecutors do not have the liberty to choose the prosecution modality. The Criminal Procedure Code does not stipulate the principle of opportunity or the plea bargain. The prosecutor can but acknowledge the fulfillment of the legal conditions for carrying out the criminal action.
The types of penalties are not limited by law for the minors already convicted either, as it rests upon the court of law to assess according to the legal criteria, with the mention that there is no relapse into crime for minors and that previous convictions do not call de plano for an aggravated treatment.
Even if, while being confined in a reeducation center or in a medical-educational institute or while being released before becoming of age, the minor perpetrates another offence, the enforcement of the prison punishment is not mandatory (article 108 paragraph 2 of the Criminal Code). The absconding of the minor from fulfilling the obligations provided in case of freedom under observation also does not mandatory entail the enforcement of the prison punishment (article 1101 paragraph 3 of the Criminal Code).
If during the trying period, the convicted person perpetrates another offence, for which a final decision was pronounced, even after the expiry term, the court shall revoke the conditional suspension, ordering the entire execution of the punishment, which shall not be absorbed by the punishment applied for the new offence (article 1101 paragraph 3 and article 83 of the Criminal Code).
The mala fide non-fulfillment of the supervision measures or of the obligations settled by the court shall entail the revocation of the suspended execution of the punishment under observation and the entire execution of the punishment (article 1101 paragraph 3 and article 864 paragraph 2 of the Criminal Code).
The law does not specify between these two ways of prosecuting according to the age of the minor in case.
Slovenia/ Slovénie: As regards the participation of juvenile victims in the procedures, we have special rules in our Criminal Procedure Act. According to these rules juvenile victims of:
a) criminal offences against sexual inviolability,
b) criminal offence of neglect of minors and cruel treatment or
c) criminal offence of trafficking in human beings,
shall have an attorney to care for his rights, particularly in connection with the protection of his integrity during examination before the court and during the assertion of a claim for indemnification. To juvenile victims without an attorney the court shall assign ex officio an attorney from among the members of the Bar.
The basic principle in our criminal justice system is principle of legality. In the field of juvenile crimes, this principle is to a much greater extent substituted with the principle of opportunity. With juvenile crimes, prosecutors have the possibility not to prosecute the case even if all the elements of crime are fulfilled. They have the right to freely estimate if the proceedings against juvenile would be appropriate or not. When they take this decision, they have to examine the nature of the offence, the circumstances in which it was committed and past conduct of juvenile perpetrator with his personal traits.
Our criminal justice system also has some legal instruments which mean the mitigation of basic principle of legality. These instruments are suspended prosecution of a criminal offence and mediation. Especially for juvenile crimes we practice broader approach to use these alternative ways of prosecuting. Even our legislation, which provides the criteria for the use of these possibilities, is different for the juveniles.
Our policy concerning the recidivists is to take into account this fact, when the prosecutor estimates the conditions for the use of alternative ways of prosecution and also when he proposes sentence at the end of the trial. We have already mentioned legal conditions for the use of prison sentence when dealing with juvenile perpetrators (answer 1).
Sweden/ Suède: There are some specific ways of prosecuting juveniles set up by the quite detailed law. These ways are among others to choice alternatives to prosecution. The court may sentence the juvenile to a special sentence, treatment of juveniles. There is also a possibility for prosecutors to issue an order for summary penalty in cases that should normally be tried at court.
Turkey/ Turquie: Article 52 pgf. 3 of Criminal Procedure Code lay down special rules for the taking of the statements of witnesses if the victims are children.
According it “ The images and voices during the hearing of the witnesses can be recorded. However, this is obligatory in case of testifying by victimized children”
Article 90/3 of Criminal Procedure Code foresees that an offender can be arrested if the victim is a child although crime needs generally a complaint. “In the case of crimes detected in the act that are committed against children or against persons who are not capable of controlling their lives because of a physical or mental illness or disability or limited physical strength, although these crimes may only be investigated and prosecuted pursuant to a complaint by the victim, apprehension of the offender shall not be subject to a complaint.”
According Article 236/2 of the Criminal Procedure Code “The child or the victim whose psychology has been disturbed as a result of the crime committed can only be listened once as a witness during the investigation or the proceeding being carried out with regard to that crime. Cases whereby this is necessary in order to reveal the concrete truth constitute an exception.”
The prosecutor has to request ex officio for a lawyer according article 239/2 of Criminal Procedure Code if the victim is a child.
According Article 45 of the Criminal Procedure Code the witness who is in a insufficient age may be listened to as witness with the consent of its legal representatives. If the legal representative is the accused or suspect, he/she cannot decide on refraining of these individuals.
- Normally the prosecutor has according Article 170 of Criminal Procedure Code a duty to pursue the crimes.
The duty to bring a public prosecution rests with the public prosecutor.
The public prosecutor shall prepare an indictment if at the end of the investigation phase the collected evidence supports a suspicion sufficient to indicate that the crime has been committed.
However according the article 171 of Criminal Procedure Code the prosecutor has a power of discretion :
The power of discretion in filing a public claim
Article 171 –
(1) In cases where the requirements for the application of the provisions of 'effective remorse, that lift the Punishment as a personal ground", or the provisions of personal impunity are present, the public prosecutor may render the decision that there is ground for prosecution.
(2) Despite there being sufficient suspicion, the public prosecutor may render "the decision on postponing of the filing of the public claim" for a duration of five years for crimes, that are investigated and prosecuted only upon a claim and carry an imprisonment punishment at the upper level of one year or less; the provisions of Article 253, subparagraph 19 are reserved. The individual who suffered from the crime may oppose this decision according to the provisions of Article 173.
(3) All of the following requirements must have been fulfilled in order to be able to render "the decision on postponing of the filing of the public claim"; the provisions related to mediation are reserved:
a) The suspect must not have been convicted for an intented crime priorly with an imprisonment term,
b) The investigation that has been conducted must have revealed the belief that, in case of "postponing of the filing of the public prosecution", the suspect shall refrain from committing furher crimes,
c) In regard to the suspect and the public, the "postponing of filing of the public prosecution" is more beneficial than would the filing of the public claim,
d) The damage of the victim or the public, which has been occured through the committed crime has been recovered to the full extend by giving back the same object by restoring to the circumstances as it was before the crime has been committed, or by paying the damages.
(4) In cases where no crime has been committed during the period of postponement, "decision on no ground for prosecution'' shall be rendered. In cases where an intended crime has been committed during the period of postponement, the public claim shall be filed. During the period of postponement, time-limit prescription does not run.
(5) Decisions related to "the postponing of the filing of the public prosecution" shall be recorded in a specified data bank for this purpose. These recordings may only be utilized for the purpose mentioned in this Article, if it has been requested by the public prosecutor, judge, or the court, in relation to an investigation or prosecution.
The police have no discretion not to refer cases involving juvenile offenders to the prosecutor for investigation.
-According Article 24 of the Juvenile Protection Law (No: 5395) the rules settled in the article 253 of the Criminal Procedure Code as regards the mediation have to be applied to the children.
The article 253 is as follows:
Article 253 - (1) There shall be an attempt to mediate between the suspect and the victim or the real or juridical person of private law, who has suffered damages from the crime for the following crimes:
a) Crimes, that are investigated and prosecuted upon the claim;
b) At the following crimes that are mentioned in the Turkish Penal Code with no regard to whether they require a claim or not:
1. Intentional wounding (except for subparagraph 3, Art. 86 and Art. 88):
2. Negligent wounding (Art. 89):
3. Violation of tranquility of domicile (Art. 116):
4. Kidnapping of a child and keeping him (Art. 234):
5. Revealing the information or documents, that have the nature of commercial secrets, banking secrets or secrets of the customers (Article 239 except for subparagraph four)
(2) Except for crimes, that are investigated and prosecuted upon a claim, for crimes that are included in other statutes, there must be a special provision in that statute in order to apply the way of mediation.
(3) In crimes that allow the application of the provisions of effective remorse and crimes against the sexual inviolability, the way of mediation is excluded, even if their investigation and prosecution is dependant upon a claim.
(4) In cases where the crime under investigation is depending on mediation, the public prosecutor, or upon his orders, the official of judicial security forces, shall propose mediation to the suspect and to the victim or to the person who has suffered damages from the crime. In cases where the suspect, the victim or the person who has suffered damages from the crime is not an adult, the proposal of mediation shall be made to their legal reperesentative. The public prosecutor is also entitled to make the proposal of mediaton by a notification furnished with ah explanation or rogatory letter. In cases where the suspect, the victim or the person who has suffered damages from the crime does not notify his decision about the mediation within 3 days after the proposal of mediation, it shall be considered that he has refused the mediation.
(5) In cases where a proposal for mediaton has been made, the nature and legal consequences of accepting or refusing the mediation shall be explained to that person.
(6) If the victim, the person who has suffered damages from the crime, the suspect or their legal representatives cannot be reached because he is not present at the address that has been declared to the official authorities, or is outside of the country or for any other ground, then the investigation shall be concluded without applying the way of mediation.
(7) In order to apply the way of mediation in crimes where more than one person has been victimized or has been damaged, it is required that all of the victims or persons who have suffered damages from the crime have accepted the mediation.
(8) The proposal of mediation, or the acceptance of mediation, does not hinder the collection of evidence of the crime that is under investigation nor the application of the measures of protection.
(9) In cases where the suspect and the victim or the person who has suffered damages from the crime has accepted the proposal of mediation, the public prosecutor is entitled to conduct the mediation himself, or may ask the Bar Association to appoint a lawyer as mediator, or may appoint a mediator from the list of persons who have obtained an education of law.
(10) The grounds of exclusion of the judge because of circumstances determined in this Code, shall also be considered while appointing the mediator.
(11) The appointed mediator shall be given a copy of each document included in the case file that are estimated appropriate by the public prosecutor. The public prosecutor shall caution the mediator about the requirement of complying with principles of the confidentiality of the investigation.
(12) The mediator shall conclude the interactions of mediation within 30 days the latest after he has received the copies of the documents included in the file of investigation. The public prosecutor may extend this period for a maximum of 20 days.
(13) The mediation conferences shall be conducted confidentially. The suspect, the victim or the person who has suffered damages from the crime, the legal representative, the defense counsel or the representative may be present during the mediation conferences. In cases where the suspect, the victim or the person who has suffered damages from the crime or his legal representative, or representative does not attend the mediation conference personally, he shall be considered as if he has refused the mediation.
(14) The mediator is entitled to consult the public prosecutor about the procedure to follow during the mediation conferences; the public prosecutor may give directions to the mediator.
(15) At the end of the mediation conferences, the mediator shall produce a report and submit it to the public prosecutor, together with the copies of the documents that have been handed over to him. If the mediation occurs, the details of the kind of mediation agreement shall be clearly explained in the report that shall be furnished with the signatures of the parties.The suspect and the victim or the person who has suffered damages from the crime may apply to the public prosecutor the latest until the date the indictment has been prepared, and produce the document that states that they have mediated their dispute, even if the proposal of mediation has been previously refused.
(17) If the public prosecutor establishes that the mediation has been achieved with the free will of the parties, and the subject of the contract is in conformity with law, then he shall put his seal and signature under the report or the document and keep it within the file of investigation.
(18) If the mediation ends without any positive result, the way of mediation shall not be applied again.
(19) If at the end of the mediation the suspect fulfills the object of the contract at once, the decision on no ground for prosecution shall be rendered. If fulfillment of the object of the contract has been postponed to a future date, or to installments, or has the nature of continuity, the decision on "postponing the filing of public prosecution" shall be rendered, without checking the requirements that are listed in Art. 171. During the duration of the postponement, the time limitation shall rest. If the necessities of mediation shall not be fulfilled after the decision of the "postponing the filing of public prosecution", the public prosecution shall be filed, without checking the requirements that are mentioned in Art. 171/4. In cases, where the mediation is achieved, no tort claim may be filed for the crime under prosecution; if there is a pending case, this case shall be considered as withdrawn. If the suspect does not fulfill the object of the contract, the report or the document of mediation shall be considered one of the documents that is listed in Art. 38 of the Act on Execution and Concurs, dated 9.6.1932, No. 2004.
(20) The assertions made during the mediation conferences shall not be used as evidence in any investigation and prosecution, or in any case.
(21) The time limitations of the prosecution and the duration of the case that is a requirement for prosecution shall not run from the date when the first mediation proposal has been made to the suspect, the victim or the person who has suffered damages from the crime, the latest until the date when the initiative of mediation was unsuccessful, or until the date when the mediator prepares and submits his report to the public prosecutor.
(22) The fee of the mediator that is proportional to his work and expenses, shall be estimated and paid by the public prosecutor. The fee of the mediator and other expenses of mediation shall be considered as court expenses. In cases where the mediation is accomplished, these payments shall be compensated by the state treasury.
(23) Against the decisions rendered at the end of the mediation, the legal remedies which are foreseen in this Code are applicable.
(24) The details about the application of the mediation shall be regulated by an internal statute.
The law was amended in 2006 to restrict the scope of application of this law to certain offences, eliminating the preferential treatment of juveniles. Such settlement can be proposed by the prosecutor, or by the police or the judge with the order of the prosecutor. It is handled directly by the prosecutor or judge, or by a lawyer, not by trained mediators.
- According the article 231 of the Criminal Procedure Code only for the ones who have not been convicted for an intended crime priorly can the related court decide to delay the pronouncement of the judgment.
If these conditions are met, and the judge approves, prosecution may be postponed
for a period of three years. If the accused is not convicted of another offence during this time, the case is closed.
Pronouncement of the judgment and delaying the pronouncement of the judgment Article 231 –
(1) At the end of the main trial, the outcome of the judgment that has been taken into the records of the trial according to the rules as indicated in Article 232, shall be read out and the main outlines of the reasons shall be explained.
(2) To the accused who is present, additionally the legal remedies he may apply to, where to apply for them, and the time limits shall be notified. The accused who is acquitted shall be notified of ground of asking for compensation if there is any. The outcome of the judgment shall be listened to by everybody while standing. In cases where at the end of the adjudication conducted related to the crime charged to the accused, if he shall be punished with imprisonment of two years or less or a judicial fine, the court may decide to delay the pronouncement of the judgment. The provisions related to mediation are preserved. Delaying the pronouncement of the judgment means that the judgment that has been produced shall not have legal effect for the accused.
(6) In order to be able to render "the decision on delaying the pronouncement of the judgment", the following requirements must have been fulfilled:
The accused must not have been convicted for an intented crime priorly,
Considering the characteristics of the personality of the accused and his behavior during the main trial, the court has to reach the belief that the accused shall not commit further crimes,
a) The damage to the victim or the public, due to the committed crime has been recovered to the full extent by giving back the same object, by restoring the circumstances as they were before the crime had been committed, or by paying the damages.
(7) In the judgment, of which the pronouncement has been delayed, the inflicted imprisonment term shall not be postponed, and in cases where the punishment is a short term imprisonment, it shall not be converted into the alternative sanctions.
In cases where a decision on delaying the pronouncement of the judgment has been rendered, the accused shall be subject to a probation term for five years.
(8) The court may decide that the accused shall be subject to an obligation of probation, not exceeding one year:
(9) a) In cases where he has no profession or skill, the cour t may decide that he shall take part in an education program in order for him to obtain a profession or a skill,
(10) b) In cases where he has a profession or a skill, the court may decide that he shall work for a fee in a public institution or in a private place, under the supervision of another person who performs the same profession or skill,
(11) c) The court may decide that he shall be prohibited from going to certain places, that he shall be obliged to visit certain places, or to fulfill another obligation which shall be determined by the discretion of the court. During the period of probation, the time limit prescription of prosecution shall lapse.
(12) (9) In cases, where the accused is not able to fulfill the requirement that is mentioned in subsection (c) of subparagraph 6 immediately, the court may decide as well that the pronouncement of the judgment shall be delayed under the requirement that the accused pays the damages of the public or the victim in the full extent in monthly installments.
(10) In cases where there has been no intentional crime committed during the period of probation and the obligations related to the measures of controlled liberty, the judgment, of which the prouncement had been delayed, shall be annulled, and the court shall render the decision on dismissing the case.
(11) In cases where the accused has committed a new intentional crime during the period of controlled liberty, or has violated the obligations related to the controlled liberty, the court shall pronounce the judgment. However, the court may evaluate the circumstances related to the accused who was not able to fulfill the obligations inflicted on him, and may decide that the portion of the punishment which may be determined up to the half of the original one shall not be executed, or if the requirements are present, to suspend the imprisonment, or to convert the punishments in the judgment into alternative sanctions, thus forming a new judgment
12) The decision on delaying the pronouncement of the judgment may be subject to opposition.
(13) Decision related to "the delaying the pronouncement of the judgment" shall be recorded in a specified data bank for this purpose. These recordings may only be utilized for the purpose mentioned in this Article, if it has been requested by the public prosecutor, judge, or the court, in relation to an investigation or prosecution.
(14) The provisions of this Article related to the "the delaying the pronouncement of the judgment" shall not be applied for crimes that are mentioned in the "reform laws", protected by the provisions of Article 174 of the Constitution
- According the article 50 of the Turkish Criminal Code the court can substitute the imprisonment with some measurements like:
· A judicial fine;
· Compensation to the victim or public which returns or restores matters to their previous condition or which indemnifies such in respect of all damage caused; Admittance to an educational institution;
· Restriction on freedom of movement in respect of certain places and restrictions in conducting certain activities for a duration of between one- half and twice the term of imprisonment;
· Confiscation of a driving license or any other certificate granting permission to perform specific acts;
· Deprivation of the right to carry out a profession or to operate in a certain area of activity for a minimum term of between one-half and twice the term of imprisonment;
· Publicly beneficial work for a minimum term of between half and two times the term of imprisonment, though only with the consent of the offender.
Where any offender has not previously received a penalty of imprisonment and the penalty of imprisonment imposed is thirty days or less; or where an offender was under eighteen years of age at the time of the offence and the term of imprisonment imposed is one year or less, such term of imprisonment must be substituted by one of the alternative sentences described above.
After a judgment becomes final, if any requirements imposed by the alternative sentences have not been commenced, or continued with, within thirty days of the notification conveyed by the Public Prosecutor’s Office, the Court which imposed the sentence shall decide whether to enforce the sentence of short-term imprisonment in full, or in part, and, if so, this sentence shall be enforced immediately.
When the alternative sentence has not been complied with due to reasons beyond the offender’s control, the court which imposed the sentence shall amend the alternative sentence.
According the Article 51 of the Turkish Criminal Code a sentence of imprisonment for a term of two years or less may be suspended. The upper limit of this term is three years for those under eighteen of age at the time of the commission of the offence.
However, in order to decide to suspend the sentence,
a) the person should not have been sentenced to a penalty for a term of more than three-month imprisonment for an intentional offence,
b) the Court should be convinced, as a result of hearing the remorse he expressed during trial, that the offender will not commit further offences in the future.
The suspension of the penalty may depend upon the condition that compensation is provided to the victim or public, which returns or restores matters to their previous condition or which indemnifies such in respect of all damage caused. In such case, the enforcement of the penalty shall continue at the institution of enforcement until this condition is met. Once the condition is met, the offender shall be released immediately, upon a decision of a judge.
A probation period which is not less then one year and not more then three years shall be imposed for an offender whose sentence has been suspended. The lower limit of this period shall not be less than the term of sentence.
Within the probation period, the court may decide that an offender, who is under the age of eighteen years, shall attend an educational institution, which provides accommodation when necessary, in order to acquire a profession or trade.
The court may assign an expert to counsel the offender within the probation period. This expert shall give guidance to the offender designed to aid the person, to act responsibly and refrain from negative behaviour; meet and discuss with the authorities of the educational institution or work place of the offender; prepare a report, every three months, on the development, behaviour, social adaptation and sense of responsibility of the offender and convey these reports to the judge.
England and Wales/ Angleterre et le pays de Galle: Initial witness statements are not taken by public prosecutors, but are taken by the police as part of their investigation into a criminal offence. Most statements are taken in writing, although certain categories of witness, such as those under 17 and those who are otherwise vulnerable through incapacity or fear of testifying, may be interviewed by the police and the interview recorded on video. The recording is played in court instead of the witness giving evidence in chief. The witness is then cross examined by defence, but the court may allow this to occur using a TV link which allows victims and witnesses to give evidence without the fear of intimidation by the defendant or the stress of the court room.
The prosecutor can only prosecute a youth if the 2 stages of the test set out in the Code for Crown Prosecutors (see answer to question 1 above is satisfied.)
Diversion by way of reprimands and warnings, the formal diversion by the police, can only occur when the following statutory criteria are satisfied:
There are further limitations on this diversion, in that a youth can only receive one reprimand. A second offence may be dealt with by way of a warning ( which is an oral admonishment given by police, followed by a referral to the youth offender team who will carry out an assessment and offer an intervention programme designed to prevent the youth from re offending. )A youth can only receive one warning, unless 2 years have passed from the date that he received the warning to the date of the new offence.
If the youth is not eligible for a warning, then the public interest will usually require a prosecution. However, the prosecutor may decide that no formal action is necessary e.g. where the offence is low level and unlikely to be repeated or that the behaviour has already been dealt with by the rules applicable in the school or children’s home in which the offending behaviour occurred.
Scotland/ Ecosse: In relation to collecting testimonies, the police will take statements from all relevant witnesses in the case. Should further information be necessary, Scots law provides for witnesses to be precognosced (interviewed by someone from the prosecution service or the defence) to ascertain further details.
With regards to prosecutorial decisions, discretion and issues to be considered, the current position is outlined above, in answer to question 1, and further details can be obtained by referring to the Prosecution Code for Scotland.
In Scotland, certain offences, such as murder, carry mandatory prison sentences. However consideration is taken into the individual circumstances of the case and the age and status of the accused. There are various options for imprisonment, such as within a Young Offenders Institute.
Ukraine: Subject to Article 308 of the Code of Criminal Procedure of Ukraine, a victim is examined in accordance with rules governing examination of witnesses. Subject to Article 168 and Article 307 of the Code of Criminal Procedure, a minor witness under 14 years of age and, upon the court’s discretion, under 16 years of age shall be examined in court in the presence of a teacher and, if required, of a doctor, parents or other representatives in law.
After examination of a minor witness, the latter shall be removed from a courtroom, unless the court finds that presence of such witness in a courtroom is required. On exceptional basis, when interests of the case or protection of a witness so require, a minor witness can be examined, upon the court’s ruling, in the absence of the defendant. At that, after the defendant returns to a courtroom, the court shall make him/her aware of a witness’s testimonies and give him/her the possibility to ask a witness questions and provide explanations on the witness’s testimonies.
Minor victims under 16 years of age shall not be warned about the criminal liability for intentional misinterpretation; they shall be informed on their duty to tell the truth only.
In compliance with the legislation currently in force, a prosecutor produces evidence, participates in examination of evidence, and files motions (including requests for new evidences) (Article 264 of the Code of Criminal Procedure of Ukraine).
Article 98 of the Criminal Code of Ukraine contains the exhaustive list of penalties imposable on minors who committed any criminal offence (a fine; community service; correctional labor; arrest; imprisonment for a determinate term as major types of penalties; a fine and disqualification from some offices or activities as supplementary penalties).
It is half as much penalties applicable to adult offenders.
In practice, the vast majority of juvenile offenders are placed under supervision of their parents; and individuals who committed crimes of minor gravity for the first time are subject to conditional sentences without imprisonment.
Armenia/ Arménie: sentencing of juvenile offenders – alternative sentences
The most commonly used “alternative sentence” is the called “conditional punishment”, the equivalent of a suspended sentence or probation. It can be imposed when a sentence of imprisonment has been imposed, but the court concludes that “the correction of the convict is possible without serving the sentence.”
The Criminal Code also provides for fines and “public work” (community service). Public work may not be imposed on offenders under the age of 16. Fines may only be imposed on convicted juveniles who have their own income or property.
In addition, the courts have discretion to impose other measures on first offenders who have committed minor or medium offences. These “disciplinary measures” – warning, parental custody, reparation of the victim, restrictions on conduct or placement in special educational facilities for juvenile offenders or “medical-educational” facilities are not considered sentences In reality, special educational or medical facilities do not exist. The duration of the other measures may not exceed 6 months If the juvenile does not comply with the measures imposed, the order may be cancelled and a sentence may be imposed.
Portugal: voir la fin du document
Ireland/ Irlande: Evidence from child victims
There are a number of legislative provisions under Irish law that allow for alternative methods to be used in collecting evidence from child witnesses. The most notable piece of legislation in relation to such evidence is the Criminal Evidence Act 1992. The Children Act 2001 also contains provisions in relation to the giving of evidence by child witnesses.
Section 13 of the Criminal Evidence Act 1992 allows for a person under the age of 18 years of age, other than the accused, to give evidence through a live television link. Section 13 further states that where such evidence is given neither the judge nor the barrister or solicitor concerned in the examination of the witness shall wear a wig or gown. It was suggested that this provision infringed the right to fair trial, as protected under the Irish Constitution. However, the constitutionality of section 13 was affirmed in the Supreme Court in the case of Donnelly v. Ireland  1 IR 3219. The applicant claimed that the section violated his right to a fair trial claiming that he had a constitutional right to physically confront his accuser in open court. The Supreme Court upheld the section holding that the right to a fair trial did not include in all circumstances the right to physical confrontation with one’s accuser. The Court further held that fair procedures were satisfied by requiring that the witness give evidence on oath, which was subject to cross-examination, while the witness was under the scrutiny of the judge and jury.
There are provisions under section 14 of the Criminal Evidence Act 1992 for evidence of child witnesses to be given through intermediaries. However, this provision would not appear to be utilised in practice.
Section 15 and 16 allow video-recordings to be admissible where the witness is available for cross-examination in relation to statements made therein. Additional provisions in relation to the admissibility of evidence are outlined in section 27(1) of the 1992 Act which state:
It was originally the case that the unsworn evidence of a child always required corroboration10; however, this requirement was abolished under section 28(1) of the 1992 Act. Section 28 introduced a discretion to give a corroboration warning to the jury where the judge decides it should be given. However, in giving such a warning it is not necessary to use any particular form or words. Subsection 3 provides that the unsworn evidence received by one person under section 27 may corroborate evidence given by another person.
In addition to the Criminal Evidence Act 1992, the Children Act 2001 refers to evidence given by children in court. Notably, section 255 gives the District Court power to take a deposition from a child who is a victim of an offence under Part 12 of the Act (cruelty to children, begging, allowing child to be in a brothel, causing or encouraging sexual offence upon a child) or any of the offences listed in the First Schedule where the court is satisfied on the evidence of a registered medical practitioner that the attendance before a court of the child would involve serious danger to the safety, health or well-being of the child. Alternatively the evidence may be given through a live television link. Subsection 4 provides for the taking of the evidence of a child under 14 years otherwise than on oath or affirmation if the court is satisfied that the child is capable of giving an intelligible account of events which are relevant to the proceedings.
Alternatives to prosecution
As noted, Irish law recognises that prosecution should be a last resort in dealing with young offenders. Please see discussion above on the Juvenile Diversion Programme under question 1.
The Children Act 2001 sets out provisions, under Irish law, for the punishment of child offenders. Section 142 of the Act outlines that a child, who is convicted of an offence, may be sentenced to a “detention order”; such an order allows a child to be detained in a detention school. Section 143 outlines restrictions on the Court’s power to grant a detention order, stating that the court shall only apply such an order where it is satisfied that detention is the only suitable way of dealing with a child and that there is a place available for them at a detention school. Section 155 outlines that where a child reaches the age of 18 while serving a sentence of detention, they shall be transferred to either a prison or another place of detention provided for by the Minister for Justice. Section 156 states that no Court shall pass a sentence of imprisonment on a child or commit a child to prison.
It should be noted that Points 8.14 to 8.21 of the Guidelines for Prosecutors outline the role of prosecutors at sentencing. It will be noted that the prosecutor’s role is to put all relevant information before the court and not to advocate any specific sentence. This position would also apply in relation to the sentencing of children.
Russian Federation/ Fédération de Russie: As regards juvenile victims of criminal assaults: the Russian law provides additional guarantees for their rights and legal interests, as supplementary to the general provisions of the Federal Law “On State Protection of Victims, Witnesses, and Other Persons Participating in Criminal Proceedings” that regulate protection of rights of victims, as well as measures aimed at ensuring safety for persons participating in criminal proceedings. In particular, questioning of juvenile victims as well as witnesses are conducted taking into account the requirements of Article 280 of the Code of Criminal Procedure of the Russian Federation: if the age of victims and witnesses participating in a questioning does not exceed 14 years, and also — at the discretion of the court — lies in the range from 14 to 18 years, an educationalist must take part in the questioning. Juveniles with physical and mental disabilities are in all cases questioned in the presence of an educationalist. For juvenile victims, the participation of their legal representatives in a court hearing is ensured in all necessary cases; in the absence of the said persons, it is ensured that representatives of guardianship and tutelage bodies take part in the court hearing. Public prosecution in such cases is conducted by public prosecutors in accordance with the requirements set out in the Order of the Prosecutor General of the Russian Federation No. 185 dated the 20th November 2007 “On Participation of Prosecutors in the Court Stages of Criminal Justice”. There are certain peculiarities in awarding punishment to accused juveniles (being on trial) which are provided in Chapter 14 of the Criminal Code of the Russian Federation. Thus, in addition to general principles of awarding punishment to juveniles, the following data are taken into account: the conditions of the juvenile’s life and education, the level of his/her mental development, other specific features of his/her personality as well as the impact exerted upon the juvenile by older persons (Article 89 of the Criminal Code of the Russian Federation).
Juvenile age as a mitigating circumstance is taken into account together with other circumstances. Punishment in the form of deprivation of liberty may not be imposed on juvenile convicts who committed for the first time an offence of minor or average gravity being aged under 16 (sixteen), as well as on other juvenile convicts who committed an offence of minor gravity for the first time. For juvenile convicts who committed an offence of minor or average gravity, as well as a grave offence being aged under 16 (sixteen), the term of punishment imposed cannot exceed 6 (six) years. For the same category of convicts who committed an especially grave offence, the term of punishment may be imposed in the form of deprivation of liberty for a term not exceeding 10 (ten) years. Such a punishment may also be imposed on other juvenile convicts, that is, those being older than 16 (sixteen) years, who committed an offence of any category.
If a juvenile aged under 16 (sixteen) years has committed a number of offences, one of which is an especially grave one, the final punishment imposed on such a convict may not exceed 10 (ten) years of deprivation of liberty. If a grave or especially grave offence was committed by a juvenile convict, the lowest possible term of punishment for the commission of the crime is decreased two-fold.
Czech Republic/ République Tchèque: As regards rights of particularly vulnerable victims, it is necessary to point out that Czech criminal law does not know this category. In spite of that, in the Code of Criminal proceedings it is possible to find provisions that apply only to a certain group of the injured person (victim) or witnesses. The Code of Criminal proceedings requires a specific procedure for them. In reality this therefore creates a category of special (different) victims. Concretely this applies to victims under 15 years of age.
If a person younger under the age of fifteen is interrogated as a witness concerning the facts recalling of which could have adverse impacts on their mental and moral development with regard to their age, it is necessary to carry out the interrogation in a particularly carefully way and as regards its content in such a way so that usually it was not necessary to repeat interrogation in next proceedings. A pedagogue (a teacher) or another person with experience with education of young people who would contribute to the proper conducting of interrogation with regard to the subject matter of interrogation and degree of the mental development of the interrogated person will be present at interrogation. If it can contribute to perform the interrogation correctly, parents can also be present.
The basic principle for interrogation of children under the age of 15 is a request of single interrogation.
New interrogation of a child is only possible in necessary cases. Legal regulation is motivated by the effort to prevent so-called system child abuse, which is characteristic by the secondary abuse of a child when after the initial trauma, injury or damage of the child there is this secondary abuse by the system which was supposed to protect the child. Limitation of negative impacts of the criminal proceedings on a child should also be achieved by the regulation in the provisions of section 102 (2) of Code of Criminal proceedings according to which it is possible to give evidence by reading of interrogation of an underage child younger than 15 in the court proceedings on the basis of a court decision without having to fulfil the conditions stipulated in section 211 of Code of Criminal proceedings.
In this connection we would like to point out the Programme of establishment of special interrogation rooms for child victims and witnesses of Ministry of Interior, Crime Prevention Department, in cooperation with the Police Headquarters of the Czech Republic.
Thanks to the Programme of establishment of special interrogation rooms for child victims and witnesses, 17 special interrogation rooms were established in 2007 in the selected criminal police and interrogation stations in the Czech Republic.
The main goal is to prevent secondary victimisation of child victims within the scope of criminal proceedings and strengthening of lawfulness and quality of acts in criminal proceedings where children participate as victims or witnesses. These rooms are adapted and equipped in such a way to arouse calming atmosphere so that a child is not traumatised by the surroundings. These rooms are equipped with monitoring audio and video technology which enables quality recording of interrogation.11
Ministry of Justice of the Czech Republic considers a possibility that the rights of victims, as the mentioned subject of special care, were stipulated completely by a special act. This separate and complete stipulation in a special act would emphasise the importance of victims and their rights. Protection against secondary victimisation has not been regulated sufficiently yet. This imperfection should also be eliminated by the proposed act. For the cases specified by law it will be mainly suitable to stipulate the right for interrogation by a person of the same sex, right for accompaniment by a fiduciary, right for interrogations in special rooms. It should also stipulate an obligation of further education (e.g. courses from the field of psychology) of the bodies active in criminal proceedings who come in contact with particularly threatened victims (e.g. the way in which interrogation is carried out).
Public Prosecutors pay attention to consistent use of proposals of alternative ways of criminal proceedings, alternative sanctions and strengthening of individual attitude to the accused.
Act on justice in the matters of young people is based on the principle of economy of criminal repression. The Act instructs to prefer alternative procedures and measures focused on the social integration and prevention. Use of punitive measures is only admissible in cases when it is not possible to achieve the aim of the act in another way. Therefore punitive measure are understood here as ultima ratio.
Generally it is possible to say that public prosecutors in criminal proceedings follow the individual approach to the individual young offenders. In the preparatory proceedings, the public prosecutors use the individual statutory institutes, including educational measures and institutes of diversion (i.e. solving of a matter in a procedural way - diversion).
The emphasis is placed on the educational element of the punishment, resp. measure as well as the actual criminal proceedings. Repressive punishment resp. punitive measures connected with imprisonment are only proposed in justified cases. Most often they use abandonment of imposing of a punitive measure and conditioned abandonment of imposing of a punitive measure with supervision (i.e. alternative sanctions connected with supervision by the probation officer). Implementation of an unconditional punitive measure of imprisonment is only applied in case the punitive measure of conditioned sentence and conditioned sentence with supervision obviously does not fulfil its purpose.
In this respect and generally in the area of criminal policy towards young people, it is necessary to assess positively the cooperation of bodies active in criminal proceedings with the officers of Probation and Mediation Service.
The Probation and Mediation Service provides assistance and cooperation in the preparatory procedure. Public prosecutors make use of the assistance and cooperation offered by the Probation and Mediation Service mostly to uncover the causes of crimes and to settle a dispute between the accused and the injured person.
The assistance and cooperation offered by the Probation and Mediation Service in criminal proceedings should help
d) replace remand in custody by an alternative measure,
e) the matter in question to be handled in proceedings of a special type,
f) the punishment to be one not connected with imprisonment.
The activities of public prosecutors making use of the assistance and cooperation offered by the Probation and Mediation Service are based on the principle that such assistance and cooperation
e) helps remove the consequences of a crime for the injured persons and other persons affected by the crime,
f) provides special care for juvenile persons and accused persons of an age close to that of juvenile persons,
g) contributes to the protection of the rights of persons injured by crime and to coordination of social and therapeutic programmes working
Cyprus/Chypre: - The public prosecutors are not directly involved in the investigation. They can only give directions to the Police regarding the investigative stage.
- The Police Regulation No. 5/18 entitled ‘Interrogation and Handling of Cases Involving Juvenile Offenders’ explains the ways in which the Police handle juvenile offenders in accordance with the provisions of the Juvenile Offenders Law, Cap. 157. Explanations are given for the procedures which are followed by the Police for Children under the age of 14, as well as for Young Persons between 14–16 years of age who are involved in various offences.
- Furthermore, this Police Regulation includes General Instructions, where it is emphasized that when the Police handle cases concerning Juveniles, have to bear in mind, among others, the following:
1. The Interrogation and the taking of statements from juveniles must be done in the presence of a parent or guardian (Article 12.3 of the “Rights of Persons being Arrested and taken into Custody” Law of 2005).
2. In cases involving students, their arrest and interrogation in the school must be avoided. If this is necessary, it must be done with the consent and in the presence of the school’s director or his/her representative.
3. In case of an arrest or an accusation against a juvenile, the parent or guardian and the District Police Commander must immediately be notified.
4. When a juvenile is held in custody of a Police Station, any association with an adult who is not a relative of his/her must be avoided.
- In Article 6 (b) of the “Rights of Persons being Arrested and taken into Custody” Law (163(I)/2005) it is provided that when a person under the age of 18 is arrested, the Social Services are also informed, if the best interest of the young offender so requires. Article 10 of the same Law provides that the interrogation of persons under the age of 18 must be done in the presence of his/her attorney and if he/she so wishes in the presence of a parent or guardian (Article 12.3) Furthermore, when a person under the age of 18 is held in custody of a Police Station, he must he kept in a separate cell.
- When Juvenile offenders are criminally liable (14 years old and above) and commit a criminal action can still be dealt with the outside of the court system in order (inter alia) to avoid getting into touch with the Criminal Justice System too early. As far as this choice is concerned, there are the following possibilities:
a) The Police can simply take no further action against a minor suspect and give just a warning/caution. Theoretically, after the agreed procedure between the Police, the Social Services and the Attorney General’s Office (see Q7), the Police cannot take this decision by itself, but in practice, this can be occurred especially regarding very minor offences.
b) When the Juvenile Committee decides that no prosecution is advised, and the Attorney General agrees, then either no further action is taken, or the Police is directed to give simply a warning to the young offender, or the young offender is referred to the Social Services and the same measures can be taken as in the cases of children in need of care and protection.
- It should be stated that, apart from these measures that can be taken regarding young offenders, there are no other diversion programmes or victim-offender mediation schemes that can be applied. This is the case not only as far as young offenders are concerned, but also regarding adult offenders. At the moment, though, a draft bill providing mediation in criminal (as well as in family law) cases is under discussion in the Parliament.
- Apart from being dealt with out of court procedures, a juvenile offender can always be prosecuted. If found guilty, a judge could impose the following series of measures available by law:
a) According to the Juvenile Offenders Law (Cap. 157) , the choices available to the court in dealing with a juvenile offender are the following:
· dismissing of the charge,
· imposing probation,
· committing the offender to the care of a relative or other fit person,
· sending the offender to a reform school,
· ordering the offender to pay a fine or to restore the damages to which he or she was liable,
· only as a last resort, and after having been persuaded that there was no other alternative, the Court may also sentence the offender to imprisonment.
b) The Probation/Guardianship and other ways of treating convicted persons Law (Law 46 (I)/96) has introduced a wide range of other sentencing options for juvenile offenders (which can be also applied to adult offenders):
· order a guardianship order; the court places the young offender for a specified period not exceeding three years under the supervision of a probation office and it may also set certain terms that have to be obeyed,
· order a guardianship order combined with an obligation for community work, provided that the young offender consents to it,
· order a guardianship order combined with an obligation to attend a tutorial or training session, provided that the young offender consents to it,
· absolute discharge,
· conditional discharge.
c) Section 5 of the Treatment of Drug Addicted Juveniles and Convicted Persons in Detoxification and Rehabilitation Centers Law of 1990 (57(1)/1992) provides for another measure that a court could order especially for drug addicted juveniles and this is the treatment order. This can be issued after an application by the juvenile’s guardian supported by an affidavit which has to satisfy the court that the juvenile needs immediate treatment otherwise his mental/physical health are in severe danger, or there are foreseeable dangers for his future and his life, or he will probably cause harm to himself or to other persons. The length of this order may not be more than 24 months, renewable every 3 months. However, this provision of the Law has never been enacted, since it presupposes the existence of treatment centers that operate according to regulations issued by the Ministry of Health. These regulations until now have not been issued. The Law Committee of the Anti Drug Council for quite a long time has been working on a new law which hopefully will introduce practicable and effective provisions.
France: Oui il existe des procédures et moyens particuliers par exemple des locaux particuliers dans les enceintes hospitalières ou les services de police avec des dispositifs video, des verres sans tain pour que le mineur ne soit pas identifié par ses agresseurs etc. Le nom des mineurs auteurs ou victime ne doit jamais être publié et les audiences se font à huis clos .
Georgie/Georgia: One of the main components of the juvenile criminal justice reform is extensive use of alternatives to prosecution that in essence represents ultimate dismissal (removal, redirection) of juvenile offender from the criminal procedure system. As a result, such approach aims at harmonized development and re-socialization of juveniles in conflict with law.
In this regard, the concept of discretionary prosecution represents a recognized and effective mechanism for the “dismissal” of juveniles from criminal justice system.
At this moment legislative changes have been prepared and presented to the parliament of Georgia regarding discretionary prosecution under article 28 of the Criminal Procedure Code of Georgia, according to which “the Prosecutor, on the basis of the well-grounded resolution, is authorized not to initiate criminal proceedings or to terminate already launched criminal proceedings due to the absence of public interest thereof.” Under proposed draft, prosecutor can use its discretionary power towards juveniles who have committed grave or less grave crimes and divert them from the criminal proceedings, as in such cases interests of juvenile re-socialization and common liberalization of criminal law policy override public interest of prosecution. The proposal aims to divert such minors to the rehabilitative and preventive activities under the Community Prosecution project piloted in several districts of Georgia (for details see below information).
Lettonie/Latvia : The interrogation of juveniles must be performed according to the provisions provided for by the Criminal Procedure Law and one of functions of the Prosecutor within the preliminary procedure is to supervise complying with the statutory procedure within the preliminary procedure while interrogating the juvenile victims, as, for example, ensuring participation of victim’s representative in the interrogation procedure and complying with other rights of the juvenile. Additionally the Criminal Procedure Law provides for other types of settling of the criminal law relationships, which may be freely selected within the preliminary procedure by the person directing proceedings, including simplified criminal proceedings, as, for example, applying Prosecutor’s injunctions regarding penalty or summary criminal proceedings. Moreover the person directing the proceedings according to the Section 12 of the Criminal Procedure Law has an obligation to manage the criminal procedure, complying with the internationally recognized human rights, and do not admit imposing of unjustified criminal procedural obligations or disproportional intervening into the life of person, restricting the human rights only in such cases when it is required by the interests of public security. As well as Prosecutor is directly involved into determination of the criminal penalty to accused juvenile, expressing an opinion regarding appropriate type and measure of sentence and has rights to lodge appellation protest in cases, if applied type and measure of sentence in the opinion of Prosecutor is not proportional, lawful or grounded.
The Section 65 of the Criminal Law provides for the peculiarities of the criminal liability of the juveniles, namely:
- For a person who has committed a criminal offence before attaining eighteen years of age, the period of deprivation of liberty may not exceed ten years for especially serious crimes; five years – for serious offences, associated with violence or threatened violence or if they have caused serious consequences; two years – for other serious offences. For criminal violations and less serious criminal offences the deprivation of liberty can not be applied to such person.
- If person has committed the criminal offence till attaining of age of eighteen years, for which the sanction of respective Section of the Special Chapter of this Law provides for a minimal limit of the liberty deprivation, the Court may impose a sentence that is lower than such minimal limit also in cases, if the Court has admitted that the criminal offence was committed in liability aggravating circumstances.
- A person, who has committed a criminal offence before attaining eighteen years of age, may be conditionally released from punishment before serving the term of the sentence, if he or she has served not less than half of the imposed punishment.
- A fine is applicable only to those minors who have their own income. A fine applied to a minor shall be not less than one and not exceeding fifty times the amount of the minimum monthly wage prescribed in the Republic of Latvia.
- A person, who before attaining eighteen years of age, has committed a criminal violation, shall, after serving the sentence, be deemed to have not been convicted.
Additionally the juveniles are provided for the restrictions to apply the security measure – arrest, namely, the Section 273 of the Criminal Law provides for, that juvenile such security measure may be applied for not exceeding of one year, and if juvenile is suspected or accused for the criminal offence committed due to negligence of for commission of the criminal violation, the arrest can not be imposed, except the case if such person under influence of intoxicating substances has committed the actions in result of which death of another persons occurred. Moreover in case, if accused is suspected or accused for commission of intentional less serious crime, the arrest may be applied only in a case if concerned person has violated provisions of another security or correctional coercive measure (putting into the educational institution of social correction), or has committed the crime being a suspect or accused for commission of serious or especially serious crime.
Moldova: According the duties incumbent to, the prosecutor is entitled to apply special procedures and means to collect testimonies. Thus, for making a complete criminal proceeding prosecutors are entitled to use the witnesses or the injured party testimonies gave in the front of the instruction judge, to apply special rules of the witness and the injured party hearing and his protection.
Thus, under art.109 Code of Criminal Procedure if the witness is not able to appear in court due to his departure abroad or due to other well-founded reasons, then the prosecutor may request that the witness be interviewed by the investigating judge, securing an opportunity for the suspect, accused, defender, injured party and prosecutor to address questions to the witness.
Under the provisions of art.110 Procedure Code if there are reasons to believe that the life, physical integrity or liberty of a witness, or of a close relative to him, are in danger related to the depositions that he makes on a case on a serious, especially serious or exceptionally serious crime, then the investigating judge, or if the case, the court may accept that the witness be interviewed without being physically present before the criminal investigating authority or in the courtroom, given that the appropriate technical devices are available.
The interview of a witness under the mentioned conditions shall be conducted on the basis of a reasoned court order of the investigating judge, or, if the case, of the court adopted at its own motion or at the reasoned request of the prosecutor, of the witness’s lawyer or of any other interested person.
A witness interviewed in the conditions provided for in this article shall be allowed to disclose information about his identity other than the real one. The information about the real identity of the witness shall be recorded by the investigating judge in a separate report, to be stored in the respective court in a sealed envelope.
According to art.10 of the Law on Prosecutor’s Office the prosecutor may decide, in the course of criminal investigations, on the exemption from criminal liability of the person, who has committed an act which contains elements of a crime, for opportunity reasons, and in accordance with the Criminal Code and the Criminal Procedure Code.
Criminal Code provides two types of sanctions in case when minors committed crimes - penalties and measures of educational constraints.
From category of punishments provided by art.62 of the Criminal Code for individuals, the law does not prohibit the application to the minors the following categories:
- Fine, from 150 to 1000 u. c., and for crimes committed in the material interest - up to 5000 u. c.;
- deprivation of the right to hold certain positions or to practice a certain activity, from 1 to 5 years;
- non-paid work to the benefit of the community, from 60 to 240 hours, from the age of 16 years and runs from 2 to 4 hours per day;
- imprisonment (article 70 CC) when is pronounced the prison sentence for the person who at the moment of committing the offense was under the age of 18 years, the prison term is reduced by half from the maximum penalty provided by the criminal law. In the case of concourse of crimes the final penalty for persons under the age of 18 years shall not exceed 12 years and 6 months, and in the case of cumulative sentence - 15 years.
Life imprisonment does not apply to minors.
The legal framework of the alternatives from the Criminal Code and Criminal Procedure Code, is provided for the prosecution and court stages. Prosecutors that exercise prosecution in cases concerning minors and represent the accusation in the courts take account of this principle and preferentially apply the rules about: exemption from criminal responsibility, Application of coercion measures of an educational nature (article 54, 93 , 104 Criminal Code) conditional exemption from liability and criminal punishment (art.59, 91 Criminal Code), conviction with conditional suspension of the execution of the punishment (article 90 Criminal Code); application of non-paid work to the benefit of the community (articles 67 Criminal Code ), reconciliation (article 109 Criminal Code).
Given the special and diverse needs of minors in conflict with the law, in the law conditions (article 54, 59, 93 and 104 Criminal Code), and taking into account the interests of the minor the prosecutor examine all possibilities to release the juvenile offender in the law conditions when he/she committed a minor offense without serious consequences with application of coercive educational measures as: warning; ordering the juvenile to make restitution for the damages caused, ordering the juvenile to follow a psychological rehabilitation treatment course, interning the juvenile in a special educational and correctional institution or in a medical and correctional institution, suspend the execution of the sentence of imprisonment and other non-custodial measures.
Monaco : S’agissant des mineurs victimes d’infraction, le Parquet Général peut requérir toutes mesures de sauvegarde nécessaires à la préservation de leur intégrité physique ou morale et/ou de leurs intérêts. A cet effet, le Parquet général peut requérir auprès du Juge tutélaire l’ouverture d’une mesure d’assistance éducative avec au besoin un placement en foyer afin de soustraire le mineur à son milieu familial, solliciter la nomination d’un administrateur ad-hoc chargé d’assister la victime dans la procédure judiciaire et de solliciter la désignation d’un avocat au titre de l’assistance judiciaire. Aucun texte spécifique n’est prévu pour le recueil des témoignages des victimes mineures mais les policiers et juges d’instruction comme la juridiction de jugement peuvent prendre des mesures afin de diminuer le traumatisme pouvant en résulter comme par exemple éviter d’obliger le mineur à témoigner plusieurs fois sans nécessité. Les policiers chargés de recueillir la parole de la victime sont ceux chargés de la protection des mineurs et bénéficient d’une formation à cette fin. Enfin, dans certaines affaires d’attentat aux mœurs, il est en pratique procédé à un enregistrement audiovisuel des témoignages afin d’éviter toute aggravation du traumatisme.
Seuls les mineurs de plus de 13 ans peuvent être incarcérés. Si, en cas de récidive, les peines encourues sont plus lourdes, la juridiction n’est jamais dans l’obligation de prononcer la peine la plus lourde dans la mesure où le prévenu peut se voir octroyer des circonstances atténuantes permettant de prononcer une peine inférieure à la peine minimale prévue par les textes. Les mineurs ne peuvent, en matière de crime, être condamnés à une peine supérieure à vingt ans d’emprisonnement, et à une peine supérieure à la moitié de celle encourue par les majeurs en matière délictuelle. Des mesures alternatives aux poursuites peuvent être mises en œuvre, même en cas de récidive, en l’absence de constitution de partie-civile de la victime.
Allemagne/Germany : In General, in cases with young victims juvenile prosecutors should be involved in the investigations from the very beginning. They are responsible for a confidential atmosphere during the hearing. They must take care of the presence of a lawyer and of the parents or custodians both of the victim and of the offender, if this is appropriate to avoid a repetition of investigative measures. They should seek for speeding the investigations and the court proceedings. They may initiate or chose educational alternatives to prosecution to a broad extent. At a very early stage of the investigation, prosecutors have to involve social workers to find out the family background and the situation of the young offender. To avoid pre-trial detention of juvenile offenders, prosecutors should initiate alternatives like special closed homes for jeopardised young people.
Montenegro: - According to the Article 482 of the Criminal Procedure Code “for criminal offences punishable by imprisonment for a maximum term not exceeding five years or a fine, the State Prosecutor may decide not to request the institution of the criminal proceedings if he finds that it would not be purposeful to conduct the criminal proceedings, taking into account the nature of the criminal offence, circumstances under which it has been committed and personal characteristics of the minor.”
Moreover, in in accordance with the Article 482b of the Criminal Procedure Code the State Prosecutors may dismiss criminal complaint or, on a motion of the State Prosecutors, the Court may discontinue criminal proceeding of imposing criminal sanction against a minor and impose one of a diversion orders.
Juvenile prison sentence may be imposed solely on an elder juvenile (16-18 years) who has committed criminal offence for which a penalty of imprisonment exceeding five years as prescribed by law.
According to the provisions of the Criminal Code juvenile imprisonment shall not be less than six months or exceed eight years. Exceptionally, for offences prescribed for which as a mildest penalty measure is a prison penalty of ten years, juvenile imprisonment up to ten years may be pronounced.
New Law on Juvenile Justice introduce new provisions under which juvenile imprisonment can last between six months and five years, or exceptionally ten years for criminal offences for which a minimal possible extent prescribed by law is a penalty of imprisonment for ten years.
Republic of Macedonia/République de Macédoine : Juvenile victim may be interviewed as a witness only if it is not detrimental effect on his psychophysical development. Juvenile may be interviewed more than twice if so requires special circumstances of the case. On hearing the juvenile as a witness or injured party, the court is obliged to take care of the personal characteristics of the juvenile, to protect its interests and its proper development. Hearings of the juvenile, depending on its age and development and is done in the presence of a psychologist, teacher or other professional person. If determined that it is necessary, given the characteristics of offense and the personality characteristics of the juvenile, the judge will order the hearing through the use of technical means for the transmission of picture and sound. Hearings are conducted without the presence of the parties and other participants in proceedings in a separate room and the questions are posed through the pedagogue, psychologist or other expert. The Public Prosecutor shall act under the law, but if the prosecutor does not request for the initiation proceedings against the juvenile, will inform the injured party. Apart from initiating cancellation proceedings, the prosecutor may within 15 days to decide not to require initiation of proceedings, although there is evidence that the juvenile has committed the offense, if he thinks it would not be necessary to run a procedure in view of the nature of the offense and the circumstances under which it is done, the former life of the juvenile and his personality. The Public Prosecutor may decide not to require initiation of proceedings for another crime of the juvenile, if given the gravity of the crime and the punishment or sanction what is done, it would have to conduct the proceedings and hearing of sanction for this action. Public Prosecutor may submit an application before the initiation of the preparatory process, may propose to the older juvenile, his attorney and family to implement a special procedure for the recognition of responsibility and settlement of the amount of punishment. Such a proposal the Public Prosecutor may lodge in cases where available evidence strongly suggests that the juvenile is perpetrator of a crime, that is responsible for done and that the conditions for penalty hearing are fulfilled. In settlement procedure the Public Prosecutor shall collect from the Center all required reports and other documents for the person of the juvenile and will ensure compliance by the injured party. If the injured party agrees with the proposal, the Public Prosecutor calls for public settlement juvenile, his agent, the center and the injured party. If they agree on settlement, there is drawn agreement that is signed by all present participants. The Public Prosecutor shall submit the agreement to the Council of juvenile who may accept the agreement and decide to reach a verdict which will pronounce proposed penalty, against which the appeal is not allowed. If the court does not accept the agreement he will return the matter to the Public Prosecutor who is obliged to submit an application for initiation of preparatory proceedings. The Public Prosecutor should not be calling the data and statements made in a settlement procedure.
Hongrie: 4a/ Minors, often becoming suffering victims of offences due to their exposure and helplessness, deserve special attention in the course of a criminal procedure.
The main task of the acting organs during the disclosure of offences against minors or the abuse of minors is to protect the minor from psychological injuries, inevitable when taking part in a procedure and giving testimony. Minors are only to be involved in criminal procedures if their testimony can provide otherwise inaccessible evidence.
The hearing of adolescents as injured party is mainly conducted by psychologists or appointed custodians. This procedure enables the psychologist to give attest, whether the statement is based on personal experience, whether it can be considered true, and also to what extent the child is psychologically impaired.
In case it seems necessary, authorities (law enforcement agencies, prosecution service, court and court of guardians) are entitled to remove the minor injured party from their endangering environment and place them in a care institution, where their physical and mental damages can be cured.
The prosecutor can act on behalf of minors in a criminal proceeding as follows:
§ if the disclosures of a criminal procedure against an accused of legal age indicate the suspicion of abuse of the minor in their care, the prosecutor will notify the child welfare agency or initiate an official proceeding. In case of necessity (if the family environment seriously endangers the mental, emotional and moral growth of the minor, including offence committed by the custodian to the injury of the minor) the juvenile prosecutor will take steps concerning temporary guardianship;
§ if the hearing of the minor (under 14) as a witness in the trial would disadvantageously influence his/her progress, the prosecutor may motion for the investigative judge conduct the hearing (in these cases the minor witness cannot be summoned for trial, his/her statement made in the presence of the investigative judge will be presented at the trial);
§ in the interest of the minor (witness, injured party) the prosecutor can place a motion on (partial) hearing in camera;
§ the prosecutor can motion that the court orders the hearing of the minor through a closed telecommunication network;
§ if in the course of the trial the necessity arises that the minor witness, having been interviewed by the investigatory judge should be heard again, the prosecutor may propose that this should be conducted by a delegated judge or an arbitrator;
§ if the parent has deliberately committed a crime to the injury of their minor child, for which the prosecutor recommended the sentence of imprisonment, with regards to the conditions provided for in Family Welfare Act the prosecutor can present a motion to the court to terminate custody of the parent regarding the injured minor;
§ the prosecutor can enforce the civil claim of the minor injured party or his/her legal representative.
4/b The aim of the criminal sanctions enforced against juveniles is to facilitate their proper improvement. This means that when proposing a certain punishment or measure to be taken against the juvenile delinquent, the prosecutor – bearing in mind the general objectives – has to examine with particular care, whether the implemented sanctions are to facilitate the proper improvement of the juvenile at the same time.
Imprisonment, being the most serious sanction, is to be implemented against a juvenile only in the last resort. Sentence to enforced imprisonment can only be necessary against juveniles having committed serious crimes, and a different punishment or confinement in a reformatory does not seem to effectuate the particular aims of punishments, set for juveniles.
Law has provided for the period of imprisonment to be imposed on juvenile delinquents different from adults. In case of every offence the statutory minimum of punishment is one month.
The maximum of punishment in case of a juvenile being over 16 at the time of the committal of the crime punishable by life imprisonment is 15 years; crimes punishable by ten and above years of imprisonment shall be punishable by up to 10 years of imprisonment. For juveniles under 16, in case of committal of a crime punishable by life imprisonment, the maximum punishment is 10 years. In any other cases, where the maximum punishment is more than 5 years, juveniles cannot be sentenced to more than 5 years.
4/c The need for waiving of court proceedings and implementation of alternative divertive legal institutions concerning impeachment of juvenile delinquents derives from international agreements on children’s rights and the desire to meet the exigencies of the time.
In case of juvenile delinquents with regard to the peculiarities of adolescence it is essential to conduct expeditious criminal proceedings. This is why prosecutors, when applicable, motion the employment of legal institutions facilitating the acceleration of procedure.
If legal conditions exist the prosecutor may postpone bringing charges against the juvenile delinquent if the postponement will have an advantageous impact on the offender’s behaviour or he can refer the case to a mediatory procedure if the procedure can be avoided.
Liechtenstein: See also reply to 7.
The investigating magistrate may examine young witnesses who are the victims of crimes in a special way provided by law. For these hearings especially equipped court-rooms - designed to make the child feel more at ease - are used. At the actual hearing only the judge and an expert( e.g. psychologists, infantile neuropsychiatries etc.) are present. The public prosecutor and the defense watch the hearing in a different room by video-conference. The may ask questions only via the judge or the expert. The child does not have to testify in front of the defendant. These methods are always used with children who are victim of sexual abuse.
There is also a specialized criminal investigation unit within the police. In minor cases the public prosecutor may drop the case. He may also impose a period of probation for the young offender or ask the court to suspend imposing a sanction after conviction for a period of probation for up to three years. The positive result of the probation extinguishes the criminal offence.
One possibility in minor cases against youth offenders is to impose a fine or - as already mentioned - to drop the charges.
These measures can only be imposed if the offender has admitted his responsibility. Furthermore, these sanctions as a general rule cannot be used in cases concerning violent crime e.g. assault, robbery.
Sometimes a decision to drop the charges will be conditioned by the offender signing a contract in which he or she commits to paying compensation to the victim and working some time for the community. This type of sanction is directed at young offenders who have not yet displayed a more permanent crime pattern and who are convicted of minor crimes, such as theft or property damage.
The youth contract is drafted by the social services in cooperation with the offender and his or hers parents and has to be approved by the prosecution and/ or the court. In such cases suspended sentences are also used, sometimes conditioned by community service.
Serbie: There are always the alternatives. The juvenile prison is not obligatory.
Iceland : In Iceland the Director of Public Prosecutions has issued rules nr. 9/2009 (on case procedures against children under the age of 15) concerning the questioning/interviewing of a child under the age of 15. Article 2 states the following:
“A child under the age of 15 may be questioned.
The child protection committee must be notified of a pending interview in order to enable the committee have its representative present. If waiting for the representative of the child protection committee causes a risk of affecting the investigation of a case, the questioning may begin in his/her absence; cf. Article 61 of the Act on Criminal Procedure and Article 18 of the Child Protection Act.
The police shall furthermore notify the parent or guardian, who may be present during the questioning, unless the child's interests or investigative interests prevent this, cf. Articles 1 and 6 of Regulation no. 651/2009 on the legal status of apprehended persons, interrogations by the police, etc.
Utmost consideration shall be exercised when questioning a child. The questioning shall take place in suitable circumstances; cf. Article 6 of the same regulation.
A report on the questioning shall be prepared as prevails, cf. Article 66 of the Act on Criminal Procedure, however, having the child sign the report is not deemed as necessary. The questioning may be sound recorded or video taped. This might be desirable when questioning takes place without the presence of a representative of a child protection committee, a parent or guardian.
It is desirable that the questioning is in the form of an interview where the child is asked to tell the truth, however, it must be kept in mind that children do not have the actual status of a suspect, cf. Article 64, paragraph 2, of the Act on Criminal Procedure.
Upon the end of the questioning, it is desirable that the parents/guardian is informed of the police intervention being over and that the case of the child is under procedure by the child protection authorities.”
If an investigation pertains to violation cf. Section XXII of the General Penal Code (Sexual Offences) and the victim has not reached the age of 15 when the investigation is launched, questioning of a victim takes place in court. This is according to Article 59, section a, of the Act number 88 2008 on Criminal Procedure. According Article 111, section 2, a judge can use this questioning as an evidence if criminal charges will be made later on, which means that the child do not have to be questioned again in court.
According to Article 61 of Act number 88 2008 on Criminal Procedure if an accused has not been apprehended, the police shall summon him/her for questioning and he/she is obligated to act on such summons. If an accused person under the age of 18 is to be questioned regarding an alleged violation of the General Penal Code or violations of other law, which could result in more severe penalty than two years imprisonment, the Child Protection Committee shall be notified and may have a representative present during the questioning.
If a juvenile confesses to an offence, a prosecutor may suspend the issue of an indictment on account of that offenca for a specified period. The conditions are listed in Article 56 of the General Penal Code No. 19, February 12, 1940 and read as follows:
“1. On account of offences committed by young persons of the age of 15 - 21 years.
2. When the situation of the offender is such that supervision or other measures under para. 3, Art. 57, may be considered more likely to have more durable result than a penalty, provided the offence is not such as to necessitate prosecution with a view to public interest.
The period of conditional suspension may not be shorter than 1 year and no longer than 5 years. Generally this period shall be laid down as 2 - 3 years. [The Prosecutor] 1) shall, in each case, specify the point in time at which the period of suspension commences.
When indictment is suspended, the conditions provided for in para. 3, Art. 57, may be laid down as deemed suitable. The conditions may be altered during the period of suspension, including by an extension of the period, however no longer than a total of 5 years.
[The Case of a person may be resumed if police investigation commences against him/her as a suspect prior to the end of the period of suspension on account of a new offence committed during the period of suspension or before a Case was suspended and also if he/she fails to a significant effect to heed the conditions laid down.] 2)
When [an investigator] 3) considers that indictment may be suspended under this Article he/she shall refer the matter to [the Prosecutor] 1) with his/her proposals.
In case the issue of indictment is suspended in accordance with the provisions of this Article [the Prosecutor] 1) shall meticulously explain the conditions to the offender and clarify for him/her the consequences of a failure to heed these.] 4)”
Prosecution can also be dropped according to Article 146 of Act number 88 2008 on Criminal Procedure. But the article is generally used, not only for young offenders. The conditions are if an accused person accepts or is subjected to a decision on penalty according to Section XXIII, cf. however, Article 148, paragraph 3, and Article 149, paragraph 4. Prosecution may be dropped with suspended postponement of indictment according to the General Penal Code.
The Director of Public Prosecutions has also issued special instructions no. 8/2009 regarding the procedure of cases involving theft at stores, containing rules pertaining to when the accused is at the age of 15-17 when the offence is committed and the individual has confessed. In the first instance, prosecution is dropped, indictment shall be postponed for two years in the second instance, the third instance results in a fine, and in an indictment in the fourth instance.
Albania/Albanie: There is no specific provision in the CPC on how the minor crime victims make their declaration during the investigation process. Article 361 of CPC deals only with cases of testimony collected during the hearings. It is interesting that according to this article, it is considered only as a right and not as a duty of the Court do decide cross-examining the minor witnesses in the presence of their parents or a psychiatrist or to bar the parts in proceedings addressing questions to them directly if not through the court.
Initiation of criminal action. According to article 58 of CPC a minor crime victims with no juridical capacity can initiate criminal action for minor crimes only through a legal representative. Even the withdrawal from the criminal action, according to article 245 of CPC, can be done only through their legal representative, it means through parents or appointed legal representatives.
Execution of penalty. According to article 51 of the CPC in case of minor crimes and when minor defendant shows self reflection, the Court has the right to order to dismiss the penalty.
Place of serving the penalty. According to the Law on the rights of the sentenced people, the minor defendants serve the sentence only to specialized institution of imprisonment for minor defendants.
1. Quel est le rôle spécifique du procureur dans la détention avant le jugement, lors des audiences et lors de la détention après la condamnation, lorsqu'il s'agit de mineurs ?
What is the specific role of public prosecutors in custody before a court hearing, during the hearing and in the detention after conviction, in cases involving juveniles?
Belgique/ Belgique : Ils n’ont pas de rôle spécifique, c’est le juge qui prend les décisions relatives à la détention.
Croatia/ Croatie : State attorney may, in cases where a juvenile perpetrator had been brought before an investigating judge, request his/her detention (which may last for 24 hours) if there are grounds for suspicion that a juvenile committed a criminal offence burdening him/her and if reasons from Article 102, paragraphs 1 and 2 of the Criminal Procedure Act exist – grounds for ordering detention, i.e. in the request for initiation of preliminary proceedings suggest ordering detention from the above-mentioned reasons. Detention may only be applied as a final measure, in proportion to severity of the criminal offence and anticipated sanctions, in the shortest duration and only if its purpose cannot be achieved by applying precautionary measure (Article 90 of the Criminal Procedure Act) or temporary accommodation (Article 72 of the Law on Juvenile Courts). In the course of preliminary proceeding a juvenile may be placed under custody of Social Service so as to receive assistance and protection or he/she may temporarily be place into Social Service institution, when it corresponds with anticipated sanction and with the aim of protecting a juvenile from further endangerment of his/her development, especially from temptation of repeating the criminal offence. Overall duration of detention during preliminary proceeding is three months. During detention a juvenile must be enabled to work and under circumstances receive education useful for his/her upbringing and vocation. As a rule, a juvenile is separated from adults while in detention, rarely is placed with adults and only if isolation of juvenile lasts longer period of time and placing him/her with an adult would not have a damaging effect. Duration of detention from submitting proposal for pronouncing sanction to final judgement must not be longer that half of the time period prescribed by article 109 paragraph 1 of the Criminal Procedure Act. This provision states the longest duration of detention before a first-instance judgment is passed. Detention is determined in months, and years in relation to upper limit of the prescribed prison sentence.
Denmark/ Danemark: The prosecutor will before a court hearing consider whether or not to ask for detention on remand and if the circumstances of the case necessitates detention on remand, the prosecution will before the court hearing seek to ensure that a secured youth institution can receive the accused, should the court decide that the conditions for detention on remand are fulfilled. Please see the answer to question 1.
When detention on remand after conviction is considered necessary, the prosecutor will in his final address to the court, ask the court to decide on the issue. In such a case the prosecutor ensures that police can escort the accused to an institution after the verdict. Furthermore the prosecutor will in some cases be involved in the prison service’s considerations concerning which institution the convicted youth should be moved to after the sentence.
15-17 year old children are only sentenced to imprisonment in serious cases or in case of repeat offences. In most cases one of the special youth sanctions will be imposed.
One possibility in minor cases against youth offenders is to impose a fine or to drop the indictment. These sanctions can only be imposed if the offender has admitted his guilt. Furthermore, these sanctions as a general rule cannot be used in cases concerning violent crime e.g. assault, robbery.
Sometimes a decision to drop the indictment will be conditioned by the offender signing a contract (a youth contract) in which he or she commits to e.g. returning to school, participating in sports, or paying compensation to the victim. This type of sanction is directed at young offenders who have not yet displayed a more permanent crime pattern and who are convicted of minor economical crime, such as theft and property damage.
The youth contract is drafted by the social services in cooperation with the offender and his or hers parents and has to be approved by the police/prosecution and the court.
In cases against offenders who are 15-17 years old suspended sentences are also used, sometimes conditioned by community service.
Finally, the so called “youth sanction” is used in more serious cases. This sanction is only used in connection with serious crime such as assault, robbery and rape, if the offence – If the offender had been 18 years or older – would have resulted in a sentence of between 30 days and 1 year of imprisonment. The youth sanction is only applied to offenders, who commit crime of a particular violent nature and who have displayed violent behavior due to e.g. lack of ability to adapt and create normal social relations.
The youth sanction lasts two years and the main content of the sanction is longterm social pedagogical treatment. During the first stage of the sanction the youth will be placed in a secured institution for a month or two in order to determine what kind of treatment is necessary. During the second stage of the sanction the youth will be placed in an open institution, where the youth e.g. can be treated for alcohol or drug abuse or receive other types of treatment or support. This stage of the sanction usually lasts about a year. During the third and last stage of the sanction the youth can stay at home, but is still supervised and followed by the social services.
Spain/ Espagne: Public prosecutors have a very important role to ensure legal rights and safeguards of the juveniles, especially when there is a measure of deprivation of liberty. Police has to notify any detention of a juvenile to the Public Prosecutor, who can order the release of the suspect or can decide to promote a pre trail measure before the Court, depending on the circumstances concerning the alleged crime and .the circumstances of the presumed perpetrator.
Pre trial custody has strict temporary limits and Public Prosecutors must control it.
On regards of detention after conviction, Public Prosecutors must carry periodical inspections to detention centres. They also must evaluate the periodical reports elaborated by multidisciplinary teams in order to promote, to reduce, cancel or modify the sanction of deprivation of liberty, if it is on the minor´s best interest,
Estonia/ Estonie : A prosecutor applies with a judge for the arrest of a minor, but preventive custody is applied to minors only in exceptional cases. The prosecutor involves in the proceedings concerning arrest a pedagogue or a psychologist and a doctor, who have the opportunity to express their opinion about the deprivation of liberty of the minor in the course of the proceedings either in writing or orally.
Finland/ Finlande: The normal official duties of a public prosecutor basically apply in a pre-trial investigation and main hearing concerning juveniles. These include observing the special provisions governing juveniles (see item 1 above) and ensuring that the juvenile is treated according to legislation.
Greece/ Grèce: The Minors Public Prosecutor exercises penal prosecution against minor offenders, as mentioned above. Especially for minor offenders, flagrant crimes procedure provided for in articles 417 and subs. of Code of Penal Procedure, that is apprehension and direct (within 24 hours) referral to trial is never applied, because although there does not exist an explicit law disposition that prohibits its application, this direct and accelerated procedure of crimes trial does not correspond to the need of individualised treatment and the obligation of special study of the personality of minor offenders by Minors Supervisors.
During investigation, Public Prosecutor suggests (proposes) to the Investigator the temporary or not detention of the accused minor. According to the disposition of article 282 par.5 of Code of Penal Procedure, as replaced by article 4 par.5 of Law 3189/2003 (Official gazette A’243/21.10.2003), temporary detention of a minor is permitted, upon accord opinion of Minors’ Investigator and Public Prosecutor, only if: a. the minor is accused for the perpetration of a criminal action for which a penalty of imprisonment of at least ten (10) years would be imposed to an adult and b. the minor has completed the thirteenth year of age. The inability of the minor to pay the pecuniary guarantee which may have been imposed to him/her, is not permitted to lead to his/her temporary detention by itself, that is if it is not accompanied by the infringement of some other restrictive condition by the minor, as for example his/her obligation to present him/herself in the police office or the prohibition of his/her exit from the country, in order to avoid the antipedagogical practice of imposing temporary detention to minors who do not have the financial ability to pay a pecuniary guarantee. Finally, after receiving the minor’s defence, it is possible, instead of imposing the restrictive conditions that indicatively are mentioned in paragraph 2 of article 282 of Code of Penal Procedure, which are imposed to accused adults until the definitive hearing of the charges filed against them and intend to securing their presence in the investigation or the court and their subjection to the execution of the penalty, to impose to the minor one or more of the penitentiary measures mentioned in article 122 Penal Code, that is the assignment of their custody to minors supervisors, the attendance of a social or psychological programme in state, municipal or private agents, their attendance of professional or other educational or formational schools, etc.
During the main procedure, he/she participates in the court, presenting questions and proposing to the judges the penitentiary or remedial measure or the penalty (Confinement in a Special Detention Establishment) which should be imposed to the minor.
Minors Public Prosecutor competencies
after pronouncement of judgements
According to the disposition of article 549 par.5 of Code of Penal Procedure, as this was added by the disposition of article 4 par.6 of Law 3189/2003, the locally competent Minors Public Prosecutor takes ex officio care for the execution of the Minors Courts resolutions as well as for the application of the penitentiary or remedial measures imposed to the minor offenders and their confinement in Special Juvenile Detention Establishments. According to the disposition of article 572 of Code of Penal Procedure, the locally competent Minors Public Prosecutor is the Supervisor of the Special Juvenile Detention Establishment where the minor prisoners serve the sentence of confinement in Special Juvenile Detention Establishments imposed to them by Minors Courts and visits it at least once per week, when he accepts to hearing the prisoners who wish to see him and listens to their requests. Beyond all these, in the two Special Juvenile Detention Establishments operating in our country, in Avlona Attica and in Volos, according to disposition of article 12 Law 2776/1999 “Correctional Code” (Official Gazette A’291/24.12.1999) all “juvenile prisoners” are detained, that is “prisoners who are of 13 years to 21 years old” and exceptionally may remain in these up to completion of 25th year of age, if this is deemed necessary, in order to complete the educational or professional programmes they attend within that particular detention establishment. The women minor prisoners remain in a separate wing of the Women Detention Establishment of Elaionas, Thoeves.
Italy/ Italie: After a provisional arrest by the police, the public prosecutor can question the young accused person also before the judge’s interrogation and can release him/her from prison. Nevertheless a hearing must by held by the judge before 96 hours from the arrest.
After a conviction, the public prosecution office is competent for the execution of the sentence and expresses its advice on every request presented by the offender to the judge.
Netherlands/ Pays-Bas: This role is no different from that played in cases involving adults: the public prosecutor prepares the case, issues a summons or opts for a different form of disposal (see answer to question 4). During the hearing he argues his case, formulates his demand and at the end of proceedings is responsible for the enforcement of any penalty or non-punitive order imposed by the court.
Poland/ Pologne: During a proceedings in the case of juvenile prosecutor is an ordinary party. May therefore participate in the hearing, speak about each activity and evidence and appeal against the court’s decisions. Prosecutor has no decision-making powers in this area. As an ordinary party of the proceedings, prosecutor has the right to appeal against decisions made by a family judge.
In cases, when juvenile is subjected to the criminal responsibility (situation defined in the Article 10 of the Penal Code), the proceedings is conducted according to the provisions of the Code of Criminal Procedure and the enforcement of the sentenced penalty is conducted under the Executive Penal Code. A convicted juvenile is settled in prison for young offenders. Then, a penitentiary judge oversees the implementation of the penalty. In the criminal enforcement proceedings prosecutor do not have any supervisory or decision-making powers, prosecutor in this area is an ordinary party and may therefore, make a complaint against the order issued in the course of proceedings.
Slovak Republic/ République Slovaque: A juvenile offender (unlike an adult offender) may be taken into pre-trial custody (detention) as a last resort only on condition that the purpose of the pre-trial custody (rehabilitation) cannot be achieved in any other way and if there are no other less-restrictive alternatives. Most often, the intended purpose of the pre-trial custody can be achieved if • a reliable person gives a guarantee of the juvenile offender´s rehabilitation and prevention of his criminal behaviour • a juvenile offender himself gives a guarantee or assurance of his rehabilitation and prevention of his criminal behaviour • certain restrictions are imposed on the juvenile offender • the juvenile offender is supervised by a probation and mediation officer or • the juvenile offender is imposed a financial penalty as a sentencing option. The prosecutor (similarly as other law enforcement agencies at the pre-trial stage and courts at the trial stage) is at each stage of criminal proceedings obliged to carefully consider whether the purpose of the pre-trial custody cannot be achieved in any other way.
There is a general principle that applies to the criminal proceedings involving juvenile offenders: custody (detention) cases involving juvenile offenders must urge a speedy and firm action of the law enforcement agencies (the police or prosecutors). The prosecutor is at every stage of criminal proceedings, which involve juvenile offenders, obliged to take due account of and promote and strengthen protection of juvenile offenders.
Custodial sentences imposed on juvenile offenders below the age of 18 are served in juvenile correctional facilities.
Romania/ Roumanie: According to art. 481 of the Criminal Procedure Code, “When the accused or defendant is a minor under 16 years of age, for any hearing or confrontation of the minor, if the criminal investigation authorities consider necessary, they will summon the Service for the protection of victims and social reintegration of offenders from the domicile of the minor, as well as the parents, and, if the case, the tutor, the curator or the person under whose care or supervision the minor finds himself.
The summoning of the persons stipulated under the previous paragraph is compulsory when presenting the criminal investigation materials.
Non-attendance of the persons legally summoned to the accomplishment of the acts mentioned under par. 1 and 2 does not hinder their accomplishment.”
Also, under art. 484, “Judgment of the case concerning an offense committed by a minor shall be done in his/her presence, except for the situation in which the minor eluded the judgment.
When judging the case, the authorities summon, beside the Service for the protection of victims and social reintegration of offenders from the domicile of offenders, his/her parents or, according to the case, the tutor, curator, the person in whose care or under whose supervision the minor is, as well as other persons whose presence is deemed as necessary by the court.
The persons mentioned in the previous paragraph have the right and the duty to give clarifications, formulate requests and present proposals as for the measures to be adopted.
Non-attendance of the persons legally summoned does not impede the judgment of the case.”
a) While in custody before a court hearing, it is in the prosecutor’s duties to hear the minor and to ensure him all the other procedural rights (article 143-144, 160e -160g of the Criminal Procedure Code).
The custody measure may be taken by the prosecutor against the defendant, only after he was heard in the presence of a defender, if there are sufficient evidence and grounded indications that he committed a deed foreseen by the criminal law.
The prosecutor shall inform the defendant that he has the right to hire a defender. He is also informed of his right to silence, being informed that anything he states can be used against him.
The custody measure can be applied in the cases provided by article 148 of the Criminal Procedure Code, as well as in case of flagrante delicto, no matter the limits of the punishment stipulated by the law.
Exceptionally, the minor between 14 and 16 years old, that is criminally liable, can be retained into custody at the prosecutor’s order or at the criminal investigation body’s order, with the notification and under the control of the prosecutor, over a period that cannot exceed 10 hours, if there are certain information that the minor has committed an offence punished by the law with life detention or imprisonment for 10 years or more.
The custody can be prolonged with another 10 hours at most, only if is necessary by a motivated ordinance of the prosecutor.
When establishing the provisions applicable regarding the custody measure and preventive detention, the age of the defendant is taken into account at the date when the enforcement, prolongation and maintenance of the preventive measure is ordered.
Beside the rights provided by the law for the preventive detainees exceeding 18 years old, certain rights are ensured to minors in custody or in preventive detention.
In all cases, mandatory legal assistance is ensured to minor defendants in custody or in preventive detention, the judicial bodies are compelled to take measures for the designation of an ex officio defender, if the minor did not choose one and so that he can take direct contact with the minor arrested and to communicate with him.
Whenever the custody or the preventive detention of a defendant or of a minor defendant is ordered, the parents, the legal guardian, the person in whose care or supervision the minor is under, other persons designated by him are immediately informed about it, in case of custody and in case of arrest in a period of 24 hours, and in the case of arrest the service for social reintegration of the offenders and observation of the execution of non-custodial sanctions attached to the instance that shall try the case in the first instance, shall also be informed, this fact being consigned in a report.
During the custody or the preventive detention, the minors are kept separately, in places specially allocated for the minors under preventive detention.
b) During the hearing before the judge, the prosecutor’s duties do not differ very much in comparison with the common procedure, he can address questions through the president, he can draw up requests and lay down conclusions.
c) During detention, after conviction, the prosecutor does not have any duties de lege lata.
The observance of the rights and the special statute foreseen by law for the minors in custody or in preventive detention shall be ensured through the scrutiny of a judge, specially designated by the court’s president, through the visitation by the prosecutor of the places for preventive detention, as well as through the scrutiny of other bodies entitled by law to visit the preventive detainees (article 160f paragraph 5 of the Criminal Procedure Code).
According to article 6 paragraph 1 of the Law No.275/2006 on the execution of the punishments and of the measures order by the judicial bodies during the criminal trial, the execution of the punishments shall be carried on under the observation, control and authority of the deputy judge.
Slovenia/ Slovénie: We have special limits for the custody of juveniles. During the pre-trial procedure, the maximum limit for the custody of juveniles is 3 months. There are also other regulations about custody of juveniles, for example provision that juvenile shall be held in custody separately from adults. Custody for juveniles is more or less exceptional measure in our criminal system.
Sweden/ Suède: The juveniles are very seldom detained as there is a specific rule saying that the juveniles should not be deprived of their freedom. The normal way to prevent them from destroying the investigation or commit other crimes is to hand over them to the social agencies.
Turkey/ Turquie: (1) Protective and supportive court decisions regarding juveniles can be taken by the juvenile judge either ex officio or upon the request of the Public prosecutor beside some other authorities.
Aside from rendering decisions for protective and supportive measures regarding juveniles that are in need of protection, the court shall also have the authority to decide with regard to custody, guardianship, warship, caretaker, trustee, alimony and personal contact, in accordance with the provisions of the Turkish Civil Code dated 22.11.2001 and numbered 4721. (Article 7 of Juvenile Protection Law (No: 5395) )
The judge or the court may, ex officio or upon the request of the Public prosecutor, examine the results of the measure being implemented with regard to the juvenile, and abrogate, extend or change the measure. (article 8 of Juvenile Protection Law (No: 5395) )
Investigations related to juveniles pushed to crime shall be carried out personally by the Public prosecutor assigned at the juvenile bureau.
During interrogation and other procedures related to the juvenile, the juvenile may be accompanied by a social worker.
When considers necessary during investigation, the Public prosecutor may file a request to the juvenile judge for a protective and supportive measure regarding the juvenile. ( Article 15 Juvenile Protection Law (No: 5395) )
Protective and supportive court decisions regarding juveniles can be taken by the juvenile judge either ex officio or upon the request of the juvenile’s father, mother, guardian, the person responsible for the care and supervision of the juvenile, the Social Services and Child Protection Agency or the Public prosecutor.( Article 7 of Juvenile Protection Law (No: 5395)
- The public prosecutor has according the article 17 of the law on the Establishing, Duties and Competences of Courts of First Instance and Regional Courts within the Ordinary Judiciary (Law Nr. 5235) the obligation to investigate for deciding about if there is a need to start a public trial or not , to follow up the prosecutions on behalf of the public, to attend them and if necessary appeal, parallel to the rules set up in laws and the obligation to perform the related procedures for the execution of the court decisions and and to perform the juridical and administrative tasks given by laws as it was mentioned above.
Article 20 of the Law on Execution of Penalties and Security Measures. (Law No.5275) gives special tasks to the public prosecutor: