Austrian criminal law distinguishes between adults, young adults and juveniles. Different regulations apply to these age groups, which concern both legal responsibility and possible sanctions and differ significantly from those for adults.
In Austria, juvenile criminal law is regulated by the Juvenile Courts Act (JGG), which specifically addresses the needs and development processes of young offenders. The legislator takes into account that not every offense committed by juveniles necessarily results in a "criminal career". Behavior in adolescence is often characterized by the so-called adolescent crisis, in which the social and personal identity is still developing.
A decisive factor in juvenile criminal law is the age at the time of the offense. It is the age of the person when the offense was committed that counts, not the time at which the offense occurred. In the case of persistent offenses that continue over a longer period of time, the age at the time the offense was completed is taken into account.
Who is covered by juvenile criminal law?
- Young people, persons aged 14 to 18 years
- Young adults, persons aged 18 to 21 years
Children under the age of 14 are minors and cannot be punished under criminal law.
Special features of juvenile criminal law: an overview
There are many regulations in juvenile criminal law that differ significantly from those in adult criminal law. Juvenile criminal law ensures that the penalties are not only used as punishment, but above all have a preventative effect by helping the offender to integrate into society.
When are juveniles exempt from punishment?
- In the case of delayed maturity or if juveniles are under 16 years of age and have only committed one offense, the penalty may not be imposed.
- If no serious offense has been committed and the young person shows insight, this is often taken into account as a mitigating circumstance.
Juvenile criminal law focuses on specific preventive goals - in other words, the main purpose of punishment is to integrate the offender into society and prevent reoffending. General preventive goals (i.e. deterring the general public through punishment) play a lesser role than in adult criminal law.
Refraining from prosecution
In certain cases, criminal prosecution may be waived if:
- The maximum sentence does not exceed 5 years imprisonment.
- The act had no serious consequences and no further intervention measures are required.
If all requirements are met, the public prosecutor's office must refrain from prosecution. This gives the perpetrators a chance to get out of the case without a conviction.
Diversion: the path to an out-of-court solution
Diversion is one way in which juveniles and young adults have to take responsibility for their actions without a criminal conviction. Unlike in adult criminal law, there are no upper limits for sentences beyond which diversion is no longer possible. However, a number of conditions must be met for diversion:
- The offense must be sufficiently clarified.
- There must be no serious guilt.
- The offender must always take responsibility for his actions.
Unlike in adult criminal law, diversion can even be applied in cases that normally appear more serious, such as sexual offenses that are punishable by a prison sentence of more than three years. Diversion is even possible in cases involving the death of a relative, which already represents a serious psychological burden for the accused.
There are various forms of diversion:
- Fines - These are only imposed on juveniles if the offender is able to pay the fine themselves and without jeopardizing their future.
- Non-profit benefits - Certain upper limits are set for young people: They may work a maximum of 6 hours a day and 12 hours a week, with no more than 120 hours required in total. This upper limit does not apply to young adults. It should also be noted that the age at the time of the decision on diversion is relevant here.
- Restitution - This is a form of compensation in which the offender must pay damages to the victim. Restitution for juveniles differs from adult criminal law in that the victim does not have to agree to the restitution in juvenile criminal law. However, the consent of the legal representative is required for young people under the age of 18.
Conviction and penalties
In some cases, a conviction is pronounced without a sentence. This happens when the penalty for the offense is so low (for example, 3 to 4 months imprisonment) and the special preventive goals have already been achieved through other measures.
There is also the guilty verdict with reservation of punishment. In this case, the offender is found guilty, but the sentence is not imposed for the time being. It is postponed to see whether the offender continues to behave well.
Fines and prison sentences
In juvenile criminal law, fines and custodial sentences are often mitigated.
Fines:
In the case of daily fines, the maximum fine is reduced by half. The minimum daily rate remains unaffected and amounts to EUR 4. The maximum daily rate is EUR 5,000. Here, too, care is taken to ensure that the penalty does not jeopardize the offender's further progress.
Other fines
When imposing other fines, consideration must be given to the defendant's future, which must not be jeopardized.
Forfeiture and extended forfeiture are an exception. These are excluded. (§§ 20, 20b StGB)
Prison sentences
There is also relief for custodial sentences:
- Juveniles over the age of 16: If the threat of punishment is between 10 and 20 years or life imprisonment, the sentence is reduced to 1 to 15 years.
- Juveniles under the age of 16: If the threat of punishment is between 10 and 20 years or life imprisonment, the sentence is reduced to 1 to 10 years.
- Penalty of 10-20years: for juveniles (14-18 years of age) the mitigated penalty is 6 months to 10 years
In all other cases, the minimum sentence is waived and the maximum sentence is halved.
An example: In the case of grievous bodily harm, the penalty for juveniles is now only up to 2.5 years imprisonment instead of the 6 months to 5 years threatened in Section 84 (4) StGB.
Young adults (18 to 21 years) often fall into a transitional area. They also benefit from lighter sentences, especially for less serious offenses. The maximum sentence for them is also 15 years. The minimum sentence is structured in the same way as for juveniles (either no minimum sentence, 6 months or 1 year).
However, there are also areas in which the normal penalties apply, such as homicide, sexual assault or membership of a terrorist organization.
Conditional leniency
Juvenile criminal law also offers the option of conditional remission. This means that juveniles and young adults do not have to serve their entire sentence under certain conditions. This possibility is regulated in § 43 and § 43a of the German Criminal Code (StGB). A special provision in the Juvenile Courts Act (JGG) (Section 5 no. 9 JGG) even allows a large part or all of the sentence to be remitted - regardless of the amount of the sentence. In adult criminal law, this type of remission is only available for custodial sentences of up to 2 years (or up to 3 years in the case of partial remission). Fines can also be remitted conditionally by 2/3, which is a further relief for juvenile offenders.
The legal representative
Another important aspect of juvenile criminal law is the role of the legal representative. For young people under the age of 18, a legal representative (usually the parents) must always be involved in the proceedings. Without their consent, some legal acts cannot be carried out, such as agreeing to a settlement or acknowledging a legal obligation. However, there are also actions for which the consent of the legal representative is not required, for example consent to diversion (out-of-court resolution of the proceedings), which only needs to be communicated to the legal representative.
Defense in juvenile criminal law
Another important element is the defense in juvenile criminal law. A distinction is made here between the necessary defense and the optional defense. For juveniles (14-18 year olds) , the Juvenile Courts Act (§ 39 JGG) has greatly expanded the necessary defense of § 61 StPO. This means that in certain cases a defense lawyer must be called in and cannot be refused. A necessary defense counsel must be consulted in the following situations:
- In the case of crimes, i.e. offenses that were committed intentionally and are punishable by a prison sentence of more than 3 years, already in the preliminary proceedings and during questioning by the police.
- In the event of an arrest
- In a juxtaposition.
- A defense lawyer must be present at the main hearing, even before a district court
- In legal proceedings when an appeal or nullity complaint is lodged
In proceedings for the commission of an offense, there is generally no need to involve a defense lawyer in the preliminary proceedings unless further investigations are ordered in the preliminary proceedings, such as for example:
- Expert opinion.
- Presentation for immediate questioning.
- A reconstruction of the crime.
- An adversarial hearing.
For young adults, the regulations on the necessary defense counsel in § 61 StPO are relevant, i.e. the same regulations as for adults.
Special court appointments for juveniles and young adults
Proceedings before a court of lay assessors or a jury court must be composed in such a way that at least half of the lay assessors or jurors have special professional experience in dealing with juveniles and are of the same gender as the accused.
Special features of arrest and pre-trial detention
In proceedings where the district court has jurisdiction, pre-trial detention is generally not permitted. However, pre-trial detention can be replaced by suitable family law orders, if necessary in combination with less drastic measures. Provisional probation should be particularly emphasized here.
Conclusion
Juvenile criminal law in Austria offers young offenders the chance to rehabilitate themselves and return to society instead of just punishing them. The numerous measures and special regulations, such as diversion or conditional suspended sentences, aim to give young offenders a second chance. The focus is always on the individual's stage of development, and juvenile criminal law is less geared towards general prevention than adult criminal law.
If you or your child are confronted with questions or problems in the area of juvenile criminal law or need legal support, I am available to you at any time. As an expert in the field of criminal law, including juvenile criminal law, I offer you competent advice and representation in order to find the best solutions for your individual situation. Do not hesitate to contact me - I will be happy to support you on the way to a fair and goal-oriented solution.