What is a Temporary Criminal Order

Crime and Criminal Law

Heribert Ostendorf

Prof. Dr. Heribert Ostendorf, born in 1945, worked as a judge for four and a half years after completing his studies, primarily as a juvenile judge. He then taught for eight years as a professor of criminal law at the University of Hamburg. From 1989 to 1997 he was Attorney General in Schleswig-Holstein. From October 1997 to February 2013 he headed the research center for juvenile criminal law and crime prevention at the Christian-Albrechts-Universität zu Kiel.
In addition to textbooks and legal commentaries, Professor Ostendorf has published numerous scientific treatises, especially on juvenile criminal law. His textbook "Juvenile Criminal Law" and his commentary "Juvenile Courts Act" have been published in the 9th and 10th edition and are considered standard works.

The state treats young people with greater indulgence. With regard to this stage of development, a special juvenile criminal law was created.

The youth penalty means imprisonment in a juvenile prison. Regular employment is intended to help avoid idle times, develop skills and facilitate later reintegration into everyday life. Carpentry in the youth detention center Neuburg-Herrenwörth, Bavaria, 2016 (& copy picture-alliance, Armin Weigel / dpa)

A special youth criminal law applies to young people (14 to 17 year olds inclusive) and adolescents (18 to 20 year olds inclusive). This is regulated in the Youth Courts Act (JGG). The first youth court law, the draft of which was introduced by the then Reich Justice Minister Gustav Radbruch, dates from 1923. With the JGG of 1923, the criminal liability limit was set at 14 years - previously twelve years - that is, juvenile suspects had to be at least 14 years old in order to proceed against them with criminal force, whereby the criminal liability had to be examined in each individual case. This limit still applies in Germany today and also in most European countries.

However, there are countries with different regulations. For example, the age of criminal liability in England starts at ten years, in the Scandinavian countries Denmark, Finland, Norway and Sweden at 15 years. The limits of criminal liability depend on the respective youth welfare law, which is now regulated in Germany in the Child and Youth Welfare Act (KJHG) of June 26, 1990. The Youth Welfare Act, which also dates from 1923, previously applied.

With the amendment of the Juvenile Courts Act in 1943, criminal liability was temporarily reduced again to twelve years "if the protection of the people demands criminal prosecution because of the gravity of the misconduct". The general criminal law, including the death penalty in many cases, was also to be applied to juveniles if they were treated on an equal footing with perpetrators over 18 years old in their development and "if the healthy public sentiment so because of the particularly reprehensible attitude of the perpetrator and because of the gravity of the crime demands "(§ 20 Paragraph 1). The National Socialist criminal ideology is also evident in paragraph 2 of this provision, according to which general criminal law was to be applied, "if the young person" - so the wording at that time which was stamped for the entire lifetime - "is a criminal with a peculiar character and the protection of the people demands this treatment. "

These provisions were reversed with the Youth Courts Act of 1953. At the same time, the so-called adolescents were included in the juvenile criminal proceedings. Despite being of legal age (under civil law) from the age of 18, all defendants who were under 21 at the time of the offense come before a juvenile court. This then has to decide whether juvenile criminal law sanctions should be applied to the adolescents or whether adult criminal law should be applied. While with adolescents the criminal responsibility has to be checked in each individual case, adolescents and adults are always criminally responsible - apart from exceptional culpability.

Criminal liability (& copy bpb, Heribert Ostendorf)
The juvenile criminal law is applied to adolescents if the offender corresponded to a juvenile in terms of his moral and intellectual development at the time of the offense or if the offense can be classified as "youth misconduct". The latter is understood to mean criminal offenses that are an expression of a typical adolescent life situation, for example out of showing off, adolescent carelessness, curiosity or peer pressure.

Delinquent youth: numerical development of juveniles convicted under youth criminal law (& copy bpb)
Judgments in juvenile criminal law: 14-20 year olds (& copy picture-alliance, dpa infographic 11563; source: Federal Statistical Office (2017))

Goal setting

"The application of juvenile criminal law is primarily intended to counteract renewed criminal offenses by a young person or adolescent. In order to achieve this goal, the legal consequences and, taking parental education law into account, the procedure must be geared primarily to the idea of ​​upbringing," says Section 2 (1) of the Youth Court Act .

Accordingly, juvenile criminal law is traditionally considered educational criminal law. In a departure from adult criminal law, the young person should be treated appropriately with regard to their development into adults. This requires both pedagogically qualified staff, a special procedure and appropriate responses. Deterrent effects may not be pursued with juvenile criminal law.

In contrast, critics of criminal education law speak of an educational ideology that is laid down in the law and pursued in practice, with which the punitive character of the juvenile court proceedings and the sanctions under juvenile justice are denied. Under the "guise" of upbringing, this led to a disadvantage of young people and adolescents compared to adult offenders. For example, the legal remedies for young people are limited for "educational reasons". For example, a juvenile convict cannot contest a work measure imposed on him - 40 hours of work in a nursing home - if he finds this judgment too harsh.

There is agreement that the goal of state punitive measures should not be the "good person" as an ideal type, but that all measures, and thus also educational measures, must be aimed at preventing future criminal offenses. Harmful effects on the development of the young person or adolescent should be avoided. For this reason, the duration of the deprivation of liberty is limited in juvenile criminal law and the ordering of pre-trial detention is tied to more stringent requirements; in particular, alternative measures must first be exhausted.
There is also agreement that juvenile offenders should be treated with educational sanctions as far as possible in order to deter them from further criminal offenses.

Source text

Educational measure required reading

In juvenile criminal law, judges are free to come up with a so-called educational measure in order to positively influence the life of the juvenile accused (Paragraph 9 of the Juvenile Court Act) or to impose a condition on him, for example "to make good the damage caused by the offense, personally to the person To excuse injured persons, to do work or to pay a sum of money in favor of a non-profit organization "(Section 15 of the Youth Courts Act).
Edwin Pütz, youth judge at the Düsseldorf District Court, on his experiences with assigning required reading.

[…] Southgerman newspaper: On the five-page literature list of the Düsseldorf Youth Court Assistance, there are [...] mainly educational novels: "Nobody notices if I skip" by Annette Weber. "I'm completely broke again" by Kurt Wasserfall. "Great, we put the embarrassing photo online" by Florian Buschendorff. Lots of lectures, disguised as stories?
Pütz: The idea is that we, as judges, choose a book that suits the person and the deed of the young person in order to trigger a thought process in him. He should take a different perspective, let other thoughts come to him. Afterwards there is an obligatory conversation with the social worker of the juvenile court assistance about the reading. For some milieu swank that is the maximum penalty. Read! Talk about it and reflect! But seriously, he can be happy.
SZ: Is that the clear language that the state should speak to teenage thugs or dealers?
Pütz: If I have no insight into the disease, I will not receive therapy. If I have no insight into wrongdoing, in other words: no guilty conscience, then I will only shrug my shoulders in the face of punishments and let them go through me, but I will not change. So we need to get to these inner attitudes. Small measures are sometimes more effective than the big club with which I might create counter pressure.
SZ: But is this a form of punishment in which a convicted person understands the seriousness of the matter, for example the seriousness of the victim's injuries?
Pütz: The question arises with any form of sanction, even with a stupid fine. If I am of the opinion that the convicted person has the possibilities in his head to recognize the reprehensible in his behavior, but that he is just too comfortable to reflect critically - then I like to challenge him mentally. The advantage of juvenile criminal law is that I, as a judge, can use the threat of flexion to exert pressure that people also fulfill their reading requirements. [...]
SZ: It is of course easy to tell a judge what he would like to hear.
Pütz: Did they kid me? I have to deal with the risk, sure. But at least we are already at the right discussion. We talk about seriousness. I wouldn't be able to do that if I had simply condemned the perpetrators to scrubbing the floor, where they too could have cursed and attacked the stupid judiciary. And seriously: I will probably see those who did not understand or made fun of me. Then it will be tight for them, because I can also shoot four weeks of permanent arrest or a prison sentence of at least six months.

"Read! Talk about it!". Interview by Ronen Steinke with the youth judge at the Düsseldorf District Court Edwin Pütz, in: Süddeutsche Zeitung from December 30, 2017