Author: Lawyer Enrico Germano
There had been a sensation in the news in early April 2023 in which a girl only 10 years old was found dead in Wunsiedel in Bavaria, Germany. Three boys, ages 11, 12, and 16, had been detained, as there were serious indications of violence against the girl, and the youngest of the three, an 11-year-old boy, had been involved in the girl’s death. Since the 11-year-old boy was not criminally responsible, he had been placed in a secure facility as a preventive measure . Meanwhile in Serbia, on 3 May 2023, a 13-year-old boy shoots in his school in Belgrade, using his father’s gun and killing nine people. The boy will be admitted to a psychiatric hospital as he cannot be arrested.
In Switzerland, juvenile criminal law, consisting of the Federal Act on Juvenile Criminal Law (DPMin) and the Federal Act on Juvenile Criminal Procedure Law (PPMin), is applicable to all minors between the ages of 10 and 18 who have committed a crime. Article 3(1) DPMin stipulates in the personal scope of application that this law applies to persons who have committed, between 10 and 18 years of age, an act for which the law imposes a penalty.
Basically, in Switzerland one is criminally legal from the age of 10 while in most European countries from the age of 14. In Sweden, the Czech Republic, Finland and Denmark the age is 15.
The Federal Juvenile Criminal Law Act establishes 4 types of protective measures, namely.
i. supervision, which consists of designating a suitable person (e.g., a social therapist) to assist the parents and advise them on educational matters (Art. 12 DPMin)
ii. outpatient external support, which consists of designating a suitable person to support the parents in their educational tasks and personally assist the child (art. 13 DPMin), if the supervision measure does not appear sufficient
iii. outpatient treatment, if the minor suffers from mental disorders, is impaired in the development of his or her personality, is addicted to drugs, or is otherwise affected by addiction (art. 14 DPMin)
iv. placement with private individuals or in educational or treatment institutions that are able to guarantee the necessary pedagogical or therapeutic assistance (Art. 15 DPMin).
The Federal Juvenile Criminal Law Act itself also provides for 4 types of possible punishments, namely:
i. the admonition, which is a formal disapproval of the act committed (art. 22 DPMin)
ii. the personal service in favor of social institutions, public interest works, persons in need of assistance or the injured party, with their consent, for a maximum period of 10 days (Art. 23 DPMin)
iii. the fine of up to CHF 2,000, if the minor is at least 15 years old and his or her personal circumstances permit (Art. 24 DPMin)
iv. deprivation of liberty, if the minor has acted with particular lack of scruples or with a particularly perverse motive, purpose or manner, providing for a maximum sentence for a minor from 16 years of age of 4 years (Art. 25 DPMin).
It should also be mentioned that minors can also be entered in the criminal record, provided that the court has ordered deprivation of liberty, placement in a closed institution, placement in an open institution or with a private person, or outpatient treatment. The period of expungement varies from 5 to 10 years, with the stipulation that convictions incurred when the person was a minor will be accessible only if the person in question, once he or she became an adult, was convicted of other crimes that must be entered in the criminal record.
In the case that happened in Germany or Serbia, if the same had taken place in Switzerland, the prosecuting authority could have ordered preventive detention (Art. 26 para. a lett. b DPMin) for a few days in the first case and perhaps more days in the second case, to avoid a possible contamination of the evidence, compromising the establishment of the truth.
1 5.04.2023 – https://www.swissinfo.ch/ita/tutte-le-notizie-in-breve/germania–bimba-10-anni-trovata-morta-in-baviera–fermati-3-minori/48421132
2 Bluewin.ch 8.04.2023
3 Delinquenza minorile: tutto ciò che prevede la legge, Prevenzione svizzera della criminalità PSC casa dei cantoni, Berna
4 Delinquenza minorile: tutto ciò che prevede la legge, Prevenzione svizzera della criminalità PSC casa dei cantoni, Berna
5 Delinquenza minorile: tutto ciò che prevede la legge, Prevenzione svizzera della criminalità PSC casa dei cantoni, Berna