Article 1 of Germany’s Basic Law states: “Human dignity shall be inviolable…” This applies to offenders as well. That is why the Juvenile Courts Act (German: Jugendgerichtsgesetz — JGG) is built on the principles of rehabilitating young offenders and preventing reoffending, rather than punishing a minor for an offense as such. A young offender’s sentence is aimed first and foremost at helping them recognize their wrongdoing, and never takes the form of harsh retribution.
To maximize the protection of minors’ rights and legitimate interests, the Juvenile Courts Act is oriented toward individualized, preventive education aimed at rebuilding a young offender’s character. The state uses its tools here to help young people, whose convictions and development are not yet fully formed, recognize their actions in time, make the right choices, and avoid rash decisions capable of leading to serious — and sometimes irreversible — consequences.
Under German criminal law, what matters most in sentencing a juvenile offender is not so much the offense itself as a comprehensive assessment of the young person’s character. For instance, the offender’s criminal responsibility plays a key role — that is, whether, given their stage of development, they understood the wrongfulness of their act and that they could be held criminally liable for it. These criteria shape the course of the proceedings, the sentence imposed, and how it is carried out.
As mentioned in our earlier articles, children under 14 cannot be held criminally liable. In other words, if a minor under 14 commits theft, they cannot be prosecuted simply because they have not yet turned 14. If the minor is between 14 and 18, and understood while committing the offense that their act broke the law, they can be held criminally liable for it.
The degree of severity applied in determining an offense and imposing a sentence on an adult offender is fundamentally different from how a juvenile court operates. The concept of rehabilitation for a young person rests on building the motivation to be accepted into adult society, with all corresponding rights:
- not to force them to their knees, but to lift them up;
- not to isolate the young person from society, but to return them to it;
- not to cripple their life with an uncompromising, hopeless sentence, but to give them a chance at rehabilitation;
- not to decide for the teenager how they should live, but to make them decide for themselves;
- not to narrow their mental horizons to the minimum, but to expand them as far as possible.
These legal provisions show that the state treats offenses committed by minors with heightened attention, considering each case strictly on its own merits. As a result, the measures applied to minors, even for identical acts, can differ substantially.
Unfortunately, a seemingly “harmless” offense quite common among 14- to 18-year-olds is shoplifting. Even so, in Germany a child who has turned 14 can be held criminally liable for such “mischief,” facing up to five years’ imprisonment. Often, out of inexperience, a lack of sensible parental oversight, or the desire for something out of reach, a young person can unknowingly end up in a very unpleasant situation. When charges are brought against such an unfortunate child, it is usually the parents who step in to help. Yet even they, once caught up in such a situation, are not always able to mount a proper defense or find arguments strong enough to get the criminal case against their beloved child closed.
Client Story: Two Bras in the Fitting Room
A woman named Alina once came to our firm together with her 15-year-old daughter Rita (names changed). It so happened that Rita’s trip with a friend to a youth clothing store nearly ended in tragedy. The two friends, having tried on a pile of different clothes, at some point got so carried away that they decided to try their luck with something reckless. They simply put on two unpaid bras each and were about to leave the store without paying for the new items. The two would-be shoplifters’ behavior caught the attention of the security guard on duty. When he followed the girls into the fitting room, he found price tags torn off the new bras, which our heroines had rather carelessly hidden behind the mirror. Without hesitation, the guard stopped the girls on their way out of the store and called the police…
A Triple Threat: Prison, Detention, and a Denied Residence Permit
By the time Alina and Rita came to us, a criminal case had already been opened against Rita for theft under §242 of the German Criminal Code (Strafgesetzbuch — StGB). Rita and her mother’s situation was as unenviable as it could get, for several reasons.
First, if found to have understood the nature of her actions, Rita faced a sentence of up to five years’ imprisonment.
Second, for an offense under §242 of the Criminal Code, the girl could, as a precautionary measure, be held in detention until the matter was heard in court.
Finally, the case was further complicated by the fact that Alina and Rita’s applications for a permanent residence permit in Germany were pending review at the Foreign Nationals’ Authority (Ausländerbehörde) at the time. It is no secret what a conviction against Rita — and the resulting criminal record in Germany — could have led to. A permanent residence permit would most likely have been denied not only to the daughter but to the mother as well, since information about offenses committed by minors is also reported to the Foreign Nationals’ Authority in respect of their parents.
The Lawyer’s Work: Invoking §45 JGG Before Any Indictment
It was also important to bear in mind that, in cases involving minors, German public prosecutors move quite quickly. The case is fast-tracked to court so that educational measures can be applied to the minor as soon as possible, thereby preventing any serious long-term consequences of a single lapse in judgment. Our lawyer therefore had to act quickly and professionally in this situation. It was necessary to persuade the public prosecutor’s office, with well-reasoned arguments, that the criminal case against Rita could be discontinued.
Our firm’s lawyer accordingly prepared a detailed, well-substantiated petition, with all supporting documents attached, arguing that the criminal case could be discontinued under §45 of the Juvenile Courts Act (Jugendgerichtsgesetz — JGG).
Note: §45 of the Jugendgerichtsgesetz (JGG) allows the public prosecutor’s office to discontinue a criminal case at the pre-trial stage on the grounds of minor significance — that is, without a conviction. In doing so, the prosecutor’s office refrains from pursuing further prosecution of the suspect, including where educational measures have already been determined or carried out. Under paragraph 3, the prosecutor may, in such cases, consider a judge’s involvement unnecessary.
Among the arguments presented was the fact that this was the girl’s first offense. She had not fully grasped the nature of her actions, let alone their possible consequences. She had indeed committed a theft, but in this case it should be viewed not as a crime but as a thoughtless act — especially given the low value of the stolen items.
Our petition also presented corroborated evidence that the mother had had a serious talk with her daughter about what she had done, from which it could reasonably be concluded that the girl had fully grasped what the escapade could have cost her and her mother, and deeply regretted her actions. It could therefore be confidently assumed that nothing of the kind would ever happen again in Rita’s life.
Outcome: Case Closed, Residence Permit Granted
To our clients’ relief, following our petition, the criminal case was discontinued under §45 of the Juvenile Courts Act (Jugendgerichtsgesetz — JGG) in conjunction with §153 StPO. What is more, both Alina and Rita soon successfully obtained a permanent residence permit in Germany.
Conclusion
We fully understand that representing a minor’s interests carries an extra measure of responsibility, since a young person’s future — capable of achieving the most remarkable things or seeing it all fall apart in an instant — is at stake. We are convinced that a highly qualified, experienced lawyer can properly assess a situation and give a young person who has made a momentary mistake the chance to quickly correct course and never repeat such a rash act again. As is well known, even children from the most exemplary families are not immune to serious lapses in judgment. We wish you and your children nothing but the best — but if something like this does happen in your family, as such things typically do, quite “out of the blue,” we advise you not to waste time and to seek help from professionals, who will undoubtedly make every effort to secure a positive outcome for you.
All rights reserved. Copying or republishing this article requires a link to the original source.
