Pre-trial detention of juveniles: the strict limits of the JGG

For juveniles, section 35 JGG sets up an additional hurdle. Pre-trial detention is admissible only if the disadvantages it entails for the personal development and advancement of the juvenile are not out of proportion to the significance of the offence. This tightened proportionality goes beyond the general standard of section 5 StPO. It forces the court to weigh the severe burden on the young person expressly against the weight of the offence.

The general requirements remain in place alongside. For juveniles too, an urgent suspicion and a ground for detention under section 173 StPO are needed. The JGG, however, adds its own barrier to the examination. Pre-trial detention is moreover in principle inadmissible if the district court would be competent for the proceedings. In these lighter cases detention is therefore ruled out from the start.

Added to this is a duty of ongoing observation. Pre-trial detention must be ended as soon as its purpose can be achieved or is achieved through family-law arrangements. The court must therefore constantly examine whether a supervised or family-law solution makes detention dispensable. Pre-trial detention of juveniles is thus the measure of last resort.

The priority of more lenient solutions is especially pronounced for juveniles. Section 35 JGG requires release as soon as the purpose of the arrest or of pre-trial detention can be achieved or is achieved through family-law arrangements. A suitable placement, a supervised form of accommodation or a guardianship-court measure can therefore make detention superfluous if it fulfils the same securing purpose.

In addition, the more lenient measures of section 173 para 5 StPO are available. These include, for example, directions as to residence, the pledge to make oneself available to the proceedings, or reporting duties. For juveniles such measures are to be examined with priority, because the tightened proportionality of the JGG raises the threshold for detention. The more concretely an alternative is shaped, the more weight the argument against detention carries.

In practice, what matters is presenting the court with a viable alternative. Here defence, juvenile court assistance service and legal guardians work together. Anyone who offers a concrete solution early, such as secured accommodation combined with a reporting duty, increases the chance that detention is dispensed with as disproportionate or ends quickly.

The JGG shortens the maximum duration of pre-trial detention considerably. Up to the start of the trial it must as a rule not exceed three months. For serious crimes a continuation of up to one year is possible, and after that only where the proceedings present particular difficulties. After indictment, graduated detention periods apply. These shorter periods serve the principle of expedition, because juvenile proceedings must be conducted with particular speed.

For juveniles too, the continuation is watched over by the periodic detention review under sections 175, 176 StPO. It checks at fixed intervals whether suspicion, a ground for detention and the tightened proportionality still exist. A release application can additionally bring about an earlier review hearing at any time, for instance when a family-law solution becomes available.

A peculiarity of juvenile criminal proceedings is the involvement of further participants. The juvenile court assistance service is to be involved in detention hearings where possible and brings in the social perspective. The legal guardians are to be notified so that they can accompany the proceedings and help work towards a solution. This involvement supports the search for more lenient measures and makes the avoidance of detention more realistic.