At the beginning of the present century, the development of criminal law had, apropos, reached a point where the necessity to elaborate an independent juvenile criminal law had become obvious and understood. This was a field governed by the reform ideas of Franz von Liszt and the International Association of Criminology (Internationale Kriminalistische Vereinigung). Juvenile criminality would be no longer interpreted as a set of offences or as a part of general delinquency, but as a specific social problem which needed appropriate attention, using, first and foremost, social and educational measures.1 Since that time, two principle variants in the legislative solution for juvenile criminal law can be discussed.
Pursuant to the first variant, juvenile criminal law is regulated autonomously, as for example by the German Juvenile Court Act (Jugendgerichtsgesetz) of 1923.2 Retaining certain general elements of delict from the law of administrative penalties (Verwaltungsstrafrecht, later Ordnungswidrigkeitenrecht) and from criminal law as the grounds for liability, the Act introduced a new branch of criminal law with an absolutely independent system of sanctions and grounds for their application, as well as a separate procedure and law of execution.
For German criminal law, which originated from the principles of classic criminal law and consequently, from a theory of punishment based on the idea of restitution, this meant the formation of a fundamentally new criminal law based on the idea of reform and, therefore, on the relative theory of punishment. It is absolutely understandable that these two phenomena could not fit together to be regulated by a single criminal code.
According to the second variant, juvenile criminal law remained a part of the main general criminal law by either forming a separate chapter in the penal code as in Switzerland for example or being included in the separate provisions of the penal code as in Sweden. Either of these ways do not exclude the regulation of juvenile liability by additional laws.
Even this second variant does not deny the important peculiarities of juvenile criminal law and consequently, its independence as a branch of criminal law. For example, sections 82-99 of Chapter 4 (Book 1) of the Swiss Criminal Code of 1937 apply to juvenile criminal law and is considered an essentially separate branch of criminal law.3
In Sweden, the problem of juvenile criminal liability is generally resolved by the provisions of the Criminal Code (Brottsbalk) and those of the Procedure Code (Rättegångsbalk). There are also many special laws, the most important of which are the Young Offenders Act of 1964 (the 1994 version is currently in force) and the Juvenile Supervision Act of 1990.4
In Sweden, a prosecutor dealing with a juvenile criminal case may desist the charge and is empowered to impose a fine on the juvenile. If the prosecutor decides to prosecute and the case is committed to the court, the court will be entitled to choose any of the sanctions prescribed by the Criminal Code: fine, probation, conditional sentence, imprisonment or supervision of the offender by a social welfare authority (the latter is a separate sanction). In fact, only a small number of juveniles are tried. In most cases, the prosecutor either applies the sanction or transfers the case to a social welfare authority.
One cannot forget that both variants seek to avoid a trial when a juvenile has committed a less serious crime, and that probational and social work measures form an integral part of the system of reformatory measures.
In re-creating its own system of juvenile liability, re-independent Estonia had to consider all these aspects. Although the need for new regulation became evident immediately after the former juvenile committees and so-called militia children's rooms (juvenile inspections) ceased their work, the actual drafting of a new law did not begin until the end of 1993 and the beginning of 1994. With increasing exigence, the press brought public attention to the need to deal with the problem.5 Also, various publications revealed more specifically the theoretical and practical aspects of legislative regulation in this area and potential models.6
The essential issues in this process were how radically to change the regulation of juvenile liability which was characteristic of the former Soviet legal system and which of the basic models to choose. A decision to follow the German model would have presupposed the drafting of an independent juvenile criminal code separate from the main criminal law which in itself would have assumed the existence of two separate dogmatic bases: one for the main criminal law and another for the juvenile criminal law. The second or Swedish model, that is, the insertion of juvenile criminal law together with corresponding additional laws into the main criminal law, would have presupposed an integral dogmatic basis for the main and juvenile criminal law. Taking into consideration the tendency of juvenile criminal law toward correction and a special preventive theory of punishment, the decision to follow the second model would have assumed the retention of the basic features of the former Soviet criminal law.
At that time, the content of the new main criminal law and the status of criminal law reform had not been completely clarified. There was a draft criminal code compiled by Professor Ilmar Rebane, but it had been severely criticised due to its retention of the basic features of the former Soviet criminal law.7 The general part of the draft included a separate chapter concerning juveniles (Chapter 9 (sections 70-80)) entitled “Juvenile Criminal Liability” (meaning persons 15 to 17 years of age), which focused primarily on sanctions such as fines, compulsory community work, criminal arrest and the deprivation of liberty. The draft also provided for the opportunity to release a juvenile from punishment if the court, in considering the nature of the committed offence, other circumstances and the juvenile himself or herself, established that non-punishment reformatory measures may be applied in the form of counseling, mediation, care or enrollment in an institution of special therapy or discipline (section 77).
Formally, this draft would have laid the foundation for the adoption of the Swiss model and required the enactment of a special Act to regulate the application of reformatory measures to juvenile offenders for offences which are not encompassed by criminal and administrative punishment law.
The 1996 Criminal Code of the Russian Federation has taken this route. Chapter 14 of Division V entitled “Juvenile Criminal Liability” (sections 87-96 of the Code), prescribes the criminal liability of 14-17 year olds and comprehensively provides for a system of sanctions, which is comprised of punishments and enforcible disciplinary measures. The Russian Criminal Code prescribes fines, prohibition on activities, compulsory work, reformatory work, detention and imprisonment (section 88) as punishments applicable to juveniles. According to section 90, enforcible disciplinary measures are warning; supervision by a parent, other individual or appropriate state agency; obligation to compensate for damage caused; restrictions on leisure time and special behavourial requirements. It must be noted that the structure and some provisions of I. Rebane’s draft and the corresponding chapters of the Russian Federation Criminal Code are quite similar, giving rise to the claim that I. Rebane used the Russian Federation Criminal Code bills when preparing his draft.
At the initiative of the National Council for Crime Prevention, the actual preparation of the draft dealing with juvenile criminal liability began in 1994. In early 1995, the author presented the expert committee of the Prevention Council with the draft’s underpinnings, which were based on a German variant. The author assumed that all juvenile offences would be resolved by either the youth police, the youth prosecutor or the youth court and did not deem it necessary to form committees that would debate juvenile matters. Nevertheless, this solution seemed too radical and was dismissed.
By the summer of 1995, the working group had formulated the draft law on juvenile liability providing that the main institution to deal with juvenile cases would be a juvenile committee; whereas in cases of a deprivation of liberty, the case would be dealt with by a juvenile court (later by a juvenile judge specialising in juvenile cases). According to this draft, the law would have regulated the liability of offenders 10 to 17 years of age by various means ranging from disciplinary and educational reformatory measures to criminal punishment. The source of the latter would be the Criminal Code, but juvenile judges would deal with juvenile criminal cases and impose appropriate sanctions. On 11 September 1995, the main principles of the draft were approved by the National Council for Crime Prevention.
In the course of the thorough discussions leading up to the present time, the main principles of the draft have essentially changed. The idea to establish the institution of a juvenile judge has been abandoned. Instead, a county juvenile committee will deal with all juvenile offences, except administrative and criminal cases which will be resolved in the regular manner. For the application of a deprivation of liberty, the committee will be obliged to get leave from the county or city court (corresponding amendments will be made to the Criminal Code and the Criminal Procedure Code).
Consequently, Estonia is to some extent adopting the Swedish model of juvenile criminal law. It should be taken into consideration however, that this is a preliminary solution because the above-mentioned draft is based on the currently effective Criminal Code. At the present time, the drafting of a new Punishment Code is in process which will offer fundamentally new solutions, and represents a part of the radical reform of criminal law.
The new draft Punishment Code does not include a separate chapter on juvenile criminal liability. Section 35 of Chapter 2 (“Offence”) of Division III (“Guilt”) postulates diminished liability for a juvenile (a person of 14 to 17 years of age) “in consideration of his or her maturity due to his or her moral and mental development and capability of understanding the wrong he or she has done and ability to control his or her behaviour accordingly”. On the basis of the above, the court will attempt to mitigate punishment or apply non-punitive measures, such as a warning or confinement in a school with boarding facilities or a special disciplinary institution (section 95). At the same time, the system of sanctions of the draft provides a vast variety of alternatives to the deprivation of liberty; other forms of penalty include redress, community work, obligations as to one's behaviour etc., all of which can be applied to a juvenile offender. In this way, the draft is attempting to avoid a regulation based on the substantive determination of the crime as in sections 10 and 61 of the currently effective Criminal Code. A decision not to lay a charge in the case of non-arrestable offences must be resolved in a new procedure law.