Definition and Legal Basis of Youth Custodial Sentence
Die Youth Custodial Sentence is a special form of criminal sanction that, under German law, can only be imposed on juveniles (between 14 and 17 years old) and, in certain cases, on young adults (between 18 and 20 years old). It is regulated in the Juvenile Court Act (JGG) and represents the most severe legal consequence that can be imposed under juvenile criminal law. The youth custodial sentence differs significantly from the adult custodial sentence in its objectives, implementation, and execution.
Scope of Application of the Youth Custodial Sentence
Age-Specific Application
The youth custodial sentence applies exclusively to juveniles (§ 1 JGG) and, in specific cases, to young adults (§ 105 JGG). While juvenile criminal law must be applied compulsorily to juveniles, it may be applied to young adults if, at the time of the offense, their development was equivalent to that of a juvenile or if a youth custodial sentence appears appropriate due to the nature of the offense.
Distinction from Other Sanctions
Besides the youth custodial sentence, the JGG also recognizes other sanctions, such as educational measures (e.g., directives, assistance for upbringing) and disciplinary measures (warnings, conditions, short-term detention). However, the youth custodial sentence is the most severe measure and is only permissible if these lesser responses are insufficient to suitably influence the young offender.
Factual Requirements
Severity of Guilt and Overall Assessment
According to § 17 para. 2 JGG, a youth custodial sentence may only be imposed if harmful inclinations are established or if, due to the severity of the offense, such a sentence is required. The requirement is therefore either the determination of repeated serious offenses, which indicate persistent dangerous character traits, or a particularly serious isolated crime. The decisive factor is an overall assessment of the offense, the personality of the perpetrator, and his social environment.
Minimum and Maximum Duration
The youth custodial sentence lasts at least six months and at most five years, but can be extended to up to ten years if it concerns a crime with severe consequences (§ 18 para. 1, 2 JGG).
Procedure Progression
Investigation and Main Proceedings
The proceedings are governed in principle by the provisions of the Code of Criminal Procedure (StPO), but with numerous special features favoring the juvenile defendant. For example, public hearings are often excluded, and the involvement of juvenile courts and youth welfare services is mandatory.
Legal Remedies
Even in cases where a youth custodial sentence has been imposed, the usual legal remedies (appeal, revision) remain available. The remedies are subject to the general provisions of the StPO, with exceptions to serve the protection of minors.
Objectives and Special Features
Focus on Education
The youth custodial sentence primarily serves the purpose of education (§ 2 para. 1 JGG). Unlike adult criminal law, retribution or atonement are not the main focus, but rather promoting the young offender’s commitment to the law in the future. The punishment is intended to contribute to positive development and prevent future offenses.
Particularities in Enforcement
The enforcement of the youth custodial sentence is governed by the Youth Custodial Sentence Enforcement Act of the respective federal state. As a rule, placement is in special juvenile detention centers tailored to the needs of young people. Educational measures, schooling, and reintegration programs are the main priorities here.
Legal Consequences and Side Effects
Early Release and Suspension
A central element of the youth custodial sentence is the possibility of early release. After serving half, but at the latest after two thirds of the sentence, the remainder may be suspended on probation (§ 88 JGG), provided that the objectives of the enforcement appear to have been achieved and there is no longer any danger.
Legal Consequences for the Certificate of Conduct
Youth custodial sentences exceeding two years are entered into the certificate of conduct. For lesser sentences, entries may be omitted under certain conditions in order not to jeopardize reintegration (§ 32 BZRG).
Distinction from Adult Custodial Sentence
Whereas the custodial sentence under adult criminal law primarily serves general and special deterrence as well as atonement, the focus of the youth custodial sentence is on individual education and development. The differences are also significant with regard to the selection and structuring of sanctions: while adult criminal law prescribes rigid sentences by statute, juvenile criminal law provides for flexible adaptation to individual cases.
International Comparison
Within the European and international context, there are various forms of regulations for young offenders. However, the principle of education is recognized as a key tenet in many jurisdictions, particularly in EU member states. The German youth custodial sentence is — even by international standards — regarded as a pioneering model, especially in the area of reintegration.
Significance and Critique of the Youth Custodial Sentence
The youth custodial sentence is assessed ambiguously in legal scholarship. On one hand, it is considered progressive due to its educational and reintegrative mandate. On the other, critics argue that, in practice, the implementation of educational measures is often not fully ensured due to personnel and structural deficits. Nonetheless, the youth custodial sentence remains a central instrument in German criminal justice for sanctioning and reintegrating young offenders.
References and Sources
- Juvenile Court Act (JGG)
- Central Criminal Register Act (BZRG)
- State Laws on Youth Custodial Sentence Enforcement
- Case Law of the Federal Court of Justice (BGH) on the Youth Custodial Sentence
- European Convention on Human Rights (ECHR), Art. 5 and 6 (Children and Young People)
This article provides a comprehensive overview of the concept and legal foundations of the youth custodial sentence in the German legal system, highlights its special features and objectives, and compares it with corresponding regulations at the international level.
Frequently Asked Questions
When is a youth custodial sentence imposed under German juvenile criminal law?
Under German juvenile criminal law (as per the Juvenile Court Act, JGG), a youth custodial sentence is generally imposed only as a last resort when other educational measures (e.g., educational instructions or disciplinary measures such as a warning, short-term detention, or conditions) are not available or do not appear sufficient. According to § 17 para. 2 JGG, the youth custodial sentence constitutes deprivation of liberty and is only pronounced when either the seriousness of the juvenile’s guilt requires it, or the juvenile or young adult offender needs long-term educational influence due to harmful inclinations. The court thoroughly examines all circumstances in the individual case, especially the offender’s personality, development, social environment, the seriousness and nature of the offense, any previous convictions, and measures already taken. An important criterion is also whether harmful inclinations make such a measure necessary. The youth custodial sentence is primarily intended to serve educational purposes and not merely repressive punishment.
How long can a youth custodial sentence last under the JGG?
The duration of the youth custodial sentence is regulated by § 18 JGG. The minimum duration is six months. In cases of ordinary crime, the maximum duration may not exceed five years. For crimes for which, under general criminal law, a maximum sentence of more than ten years is provided (e.g., murder), a youth custodial sentence of up to ten years may be imposed. The decisive factor is always the individual guilt of the offender and the requirement for education, with the court also needing to consider the offender’s future development and reintegration prospects. Extensions, reductions, as well as full or partial remission of the sentence are also possible under strict statutory conditions, in particular, if positive developments during enforcement are demonstrated.
Is the youth custodial sentence served in a juvenile or adult correctional facility?
According to § 90 JGG, the youth custodial sentence is in principle to be served in a youth correctional facility. This means that juveniles and young adults sentenced to a youth custodial sentence are housed in special correctional institutions tailored to the needs of young offenders. The goal of this special form of detention is education and reintegration, taking into account the specific developmental aspects of youth. Only in exceptional cases, when required by age or special circumstances, can a transfer to adult detention occur. A mixed form of detention may only be considered for young adults (18 to 20 years old) under particular conditions.
What rights and obligations do juveniles have while serving a youth custodial sentence?
Juveniles serving a youth custodial sentence retain essentially the same fundamental rights as other citizens, insofar as these are not restricted by the conditions of enforcement (e.g., deprivation of liberty, mail control). In addition, there are specific rights aimed at reintegration and education: entitlement to school and vocational training, leisure activities, medical and psychological care, and support from social workers. There is an obligation to participate in work, employment, or educational measures, to comply with house rules, and to treat staff and fellow inmates with respect. Violations of institutional rules may result in disciplinary measures.
What options are there for suspending a youth custodial sentence on probation?
The possibility of suspending a youth custodial sentence on probation is regulated in § 21 JGG. The court can suspend a youth custodial sentence of up to two years if it expects that the convicted person will respond positively to the conviction itself and supervision during probation. In reaching this decision, the court considers, in particular, the personality, living conditions, development of the juvenile, the effect of the offense, and their attitude towards the crime. During the probation period, which lasts between two and three years, the juvenile is subject to so-called supervisory probation. Additional instructions or conditions can be imposed, such as participation in anti-crime training, community service, compensation for damages, or regular reporting to a probation officer. A violation of probation conditions may lead to revocation of probation and thus to enforcement of the sentence.
What special provisions apply to young adults between 18 and 21 years of age in connection with the youth custodial sentence?
For young adults aged 18 to 21, § 105 JGG provides for a special standard of review: the court decides at its discretion whether juvenile or adult criminal law should be applied to this group. The application of juvenile criminal law — and thus the imposition of a youth custodial sentence under the JGG — occurs if either a youth-typical offense is present (e.g., due to delayed maturity, group dynamics), or if the offender’s development still corresponds to that of a juvenile. In practice, the court always examines individually whether educational aims and youth-specific factors are paramount to achieve the best possible reintegration and prevention of further crimes. Even for young adults, the youth custodial sentence is intended to be the last but appropriate response wherever possible.
