Why is crime legal in prison?

CDU / CSU for lowering the age of criminal responsibility: children under 14 years of age in prison?

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After a rape in which twelve-year-olds are said to have been involved, the lowering of the age of criminal consent is discussed. In the future, the Union wants to have younger children punished for serious crimes.

Whenever it turns out that children under the age of 14 were also involved in serious violent crimes, a ritual takes place in Germany. Mostly conservative lawyers then demand the lowering of the current age of criminal consent. So it was in 2010 when an 83-year-old pensioner in Munich was mistreated for hours by two 13-year-olds. And so it was in the summer of 2019, when a young woman was allegedly raped by children under 14 in Mülheim.

While so far the corresponding demands for lowering the criminal responsibility limit mostly fizzled out within a short time after outraged reactions, especially from jurisprudence, things could now get serious: This week the CSU state group in the Bundestag decided that at least in the case of "serious violent crimes" In the future, children under the age of 14 may also be punished under criminal law. According to Section 19 of the Criminal Code (StGB), these are currently considered to be incapable of guilt. Criminal sanctions according to the Youth Courts Act (JGG) are only possible from the age of 14. There are now the first signs of approval from the sister party CDU.

In the decision of the CSU regional group, as it was taken at the closed conference in Kloster Seeon, which ended on Wednesday, it says: "We must also be able to sanction offenders under the age of 14 in a special procedure on a case-by-case basis." In the case of serious violent crimes, "only the perpetrator's ability to understand and the gravity of the crime should be decisive for the punishment - not a rigid age limit". With the lifting of the age limit for serious crimes, according to the CSU members of the Bundestag, "in particularly serious cases, educational measures up to and including consequences for custody" should be made possible.

"The age limit of 14 years has no constitutional status"

Across from LTO The sister party CDU is now responding with approval. Your legal policy spokesman in the Bundestag, lawyer Dr. Jan-Marco Luczak said: "I can imagine a reduction in the age of criminal responsibility in certain constellations." According to Luczak, criminal responsibility is about the fundamental ability to differentiate between right and wrong, good and bad. "At least in the case of serious acts of violence, I believe that even a 13-year-old can be able to do so." A court would have to determine this on a case-by-case basis.

The proposal from the Union has now also met with sympathy among criminal lawyers. The Augsburg university professor Prof. Dr. Michael Kubiciel on Twitter: "Ultimately, it is about ensuring that only people are punished who see the injustice of their act and can behave accordingly." According to Kubiciel, the principle of guilt has constitutional status, but the age limit of 14 years does not. The criminal law teacher therefore considers it sensible to "forensically clarify the specific culpability in a transitional area". Across from LTO Kubiciel added: "A case-by-case examination, as is already the case in other countries, whether, for example, a thirteen-year-old has sufficient intellectual maturity to attribute a criminal act to him, is no less constitutionally justifiable or compatible with the concept of guilt than a rigid limit of 14 years. " However, Kubiciel drew attention to the question of whether the effort involved in such an examination was not so great "that the already burdened criminal justice system would not be overburdened with a large number of individual case examinations."

Kubiciel's opinion in criminal law circles still seems to be a minor opinion: the vast majority of criminal lawyers and youth criminologists, the LTO questioned, reject any kind of lowering of the age limit or a kind of sliding zone.

Last lowering of the age of criminal responsibility in the Nazi state

The director of the criminological institute of the University of Cologne, Prof. Dr. Frank Neubacher, revealed whether the new demand was in conversation with LTO even "strange": there are "good reasons" why the legislature with the JGG of 1953 raised the age of criminal responsibility, which the National Socialists had previously lowered to 12 years, back to 14 years. Neubacher says: "Why should the behavior of under 14-year-olds also be dealt with under criminal law? I don't see what criminal law could achieve that could not also be achieved in other ways, for example through family courts and youth welfare - apart perhaps from a ' A deterrent 'that far too many wrongly believe in. "

In this context, Neubacher warned that judicial practice must be more closely aligned with the requirements of the JGG. Finally, according to § 3 JGG, even a juvenile of criminal age (14 to under 18 years old) is only responsible under criminal law if at the time of the act he was mature enough in terms of his moral and intellectual development to see the injustice of the act and to do so to act on this insight. The examination of whether there is such a level of maturity is "not always carried out carefully in practice".

The renowned criminologist Prof. Dr. Theresia Höynck, who teaches the "Law of Childhood and Adolescence" in Kassel and has also been chairwoman of the German Association for Juvenile Courts and Juvenile Courts since 2010: "There is not the slightest indication that lowering the age limit for criminal prosecution will improve protection against criminal offenses would lead. "

She said opposite LTO: "Neither the numbers from the police crime statistics nor new criminological findings nor practical needs point in this direction." The juvenile criminologist also rejected a "sliding zone" going beyond a § 3JGG: "Fixed age limits in law are normal - from the right to a place in kindergarten through to retirement age - and also serve the functionality of the legal system".

The university professor also accused the CSU lawyers of ignorance of the legal situation: "If the CSU paper asserts that changes in the legal age limit could allow for 'consequences in custody', this shows that they were not carefully considered to check criminal age limits, not in criminal proceedings. " There are many other areas in which better support for children and young people can be discussed in order to avoid criminal offenses, said Höynck. Only: "The criminal responsibility limit is not a sensible starting point."

The Potsdam criminal lawyer and criminologist Prof. Dr. Wolfgang Mitsch warned in an interview with LTO: "A 'criminal law' for twelve-year-olds cannot be criminal law. The legislature should think about something else or simply leave the legal situation as it is." The Leipzig criminal lawyer Prof. Dr. Hendrik Schneider said Germany would be well advised not to lower the border. "Preventive effects that can be achieved with criminal law are limited and certainly not indicated in children," said Schneider LTO.

BMJV and professional associations reject changes

It remains to be seen whether the Union will soon contact the SPD-led Federal Ministry of Justice with its request. There, at least at the moment, there is no reason to change the legal age of criminal responsibility:

"Responsibility under criminal law presupposes a certain level of development, which is usually not the case in children under the age of 14. There is great consensus in science on this," said BMJV spokesman Maximilian Kall zur LTO. After all, the state has sufficient means in hand to be able to react "consistently and appropriately" to crimes committed by children under the age of 14. According to Kall, social law contains "diverse and differentiated services to support and help children, adolescents and their parents with the aim of integrating young people into society". And if significant criminal offenses are to be feared by a child, "in extreme cases the child may be placed in a foster family or in a home and deprived of personal care," said the ministry spokesman.

The legal professional organizations reject the union proposal unanimously: "The German Association of Judges sees no need to lower the age of criminal responsibility to under 14 years," said its federal manager, Sven Rebehn, on Monday the AFP news agency. The state has "already today, through the youth welfare offices and the family courts, the opportunity to intervene with educational measures in the event of a child committing a criminal offense."

The German Bar Association (DAV) also declined: Children under the age of 14 could "as a rule not see the injustice of their actions due to their level of development," said lawyer Dr. Jenny Lederer, member of the criminal law committee in the DAV. With the lowering of the criminal responsibility limit, according to the defense lawyer, there would also be the risk "that significantly younger people will be imprisoned". This applies all the more since the individual case reduction is being discussed for criminal offenses that potentially not only result in a warning. "In view of the fact that imprisonment has a considerable harmful effect on young people in particular, this must be avoided at all costs."