Selected Problems of Czech Criminal Law Juvenile Justice Jan Provazník Spring 2017 Historical Overview •app. mid 19th Century –Houses of Refuge – delinquent and endangered children –Thomas Eddy and John Griscom – delinquency as a result of social conditions – •app. end of 19th Century – specialized courts for juveniles –USA, Canada, in the first half of 20th Century most of the developed world – – Current Approaches •the welfare model –closely connected to the positivistic theory of criminal law –juvenile criminality as a result of unculpable factors •the justice model –closely connected to the classical theory of criminal law –juvenile as an autonomous actor responsible for hers or his actions Basic Ideas •Juveniles are much more open to external influences –they are much more dependant on their parents, social environment, etc. –negative: they have fewer options to prevent or resist criminogenic pressure –positive: the reforming effect of criminal-law instruments has greater effect on them •They need to be treated differently and separately from the adults – – Art. 3 § 1 of the CRC •In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Different Approach •In general –accent on reformative and therapeutic treatment –less retribution, more prevention and restoration –more involving approach [parents, schools, child protection service etc.] – •In particular –different regulation by substantive criminal law –different regulation by procedural criminal law – – Differences in the Czech Criminal Law •Both substantive and procedural aspect in one statute –law no. 218/2003 Coll., on liability of the youth for criminal acts and on juvenile justice, as amended •Substantive aspects –additional conditions of criminal liability –differences in criminal sanctions •Procedural aspects –many modifications aimed at protection of the juvenile defendant and his/hers reform – – Differences in Substantive Criminal Law •Different terminology – •Modification of age • •Additional condition of an offender • •Modification of conditions excluding illegality • •Different system of sanctions – – Different Terminology •Youth - children and juveniles •Child - A person who hasn’t reached 15th year of age –starting the day after the day of birth •Juvenile - A person who has reached 15th but hasn’t reached 18th year of age –the same rule applies •Wrongdoing - A crime committed by a juvenile –there is no division of wrongdoing •Measure = A sanction imposed on a juvenile – Modification of Age •Absolute criminal non-liability of a child –no matter how serious act the child under 15 committed (European standard – 14-16) •Relative criminal liability of a juvenile –a juvenile can be liable for every crime an adult can, only the conditions of liability, sanctioning and procedure differ •Absolute criminal liability of an adult –standard conditions of liability, sanctioning and procedure – Additional Condition of an Offender •An offender is a person who committed a criminal offence –together with object, subjective aspect and objective aspect it creates the body of a criminal act •Age + sanity + sufficient level of intellectual and moral maturity –mental development – intellectual capability to identify an act as a criminal one –moral development – volitional capability to act properly – Difference Between Insanity and Sufficient Level of… •Insanity –mental condition, given by psychiatric pathology –one’s cognitive or volitional functions don’t work as they should •Level of intellectual and moral maturity –rather social condition, given by the advancement of one’s psycho-social development –one’s body works as it should, but due to the lack of experience or slower development [compared to peers] the juvenile can’t process the information he/she gets properly or make a right judgment – Conditions Excluding Illegality – Effective Remorse •Adults: –only enumerative list of criminal acts –the offender prevented the consequence or repaired it •Juveniles –if statutory maximum doesn’t exceed five years, it is sufficient: •if the juvenile voluntarily removed or repaired the consequence •expressed effective effort to change by his behavior •the deed didn’t have any permanent negative consequences – Conditions Excluding Illegality – Limitation Period •Adults: –20 years if the criminal act is punishable by extraordinary punishment – 15 if the statutory maximum is at least 10 years – 10 if the statutory maximum is at least 5 years – 5 if the statutory maximum is at least 3 years –3 years by other criminal acts •Juveniles: –10, 5, 3 years depending on the statutory maximum – System of sanctions •Three kinds of sanctions of juveniles –corrective measures – protective measures – criminal measures •Children: –no criminal liability = no punishment –special corrective measures are applicable – Corrective measures •Along with other measures or alone •Should help to reform the life of a juvenile •Kinds: –supervision of a PMS officer – program of probation –corrective obligations – corrective restraints –notice with warning – Protective measures •Protective care –only specific form for juveniles –if the child is not treated properly, was neglected or doesn’t guarantee his/hers proper upbringing –up to 18th year of age, can be prolonged to 19th •Protective treatment •Security detention •Confiscation of an object • – Criminal measures •community service •fiscal measure •fiscal measure with conditional suspension •forfeiture of an object •prohibition of an activity •deportation •house arrest •ban on entry to a sport, cultural or other social event •deprivation of liberty with conditional suspension •deprivation of liberty with conditional suspension and supervision •deprivation of liberty – Procedural aspects •Accented protection of juvenile defendant –effort to prevent his/hers stigmatization –effort to maximize the therapeutic influence of the criminal process –effort to compensate his/hers inability to defend himself/herself Effort to prevent stigmatization •Accented protection of juvenile’s privacy –the trial is not public –the judgment is always pronounced publicly –protection of juvenile’s personal data is stricter –stricter conditions to custody – Effort to maximize therapeutic influence •Greater possibilities to work with the juvenile –withdrawal from prosecution –correctional measures in the course of the process –greater involvement of the injured party –broader involvement of the Probation and Mediation Service Compensation of the capacity to defend himself/herself •The juvenile is not able to defend himself/herself properly –compulsory defense attorney from the begging –involvement of the Social-legal Child Protection Service –prohibition of certain procedural instruments •e.g. the plea bargaining Questions? Thank you for your attention!