Hearly, Frank D.

English

Northwestern University Illinois, School of Law: Scholarly Commons

Journal of Criminal Law and CriminologyVolume 35 | Issue 3 Article 21944Legislation Concerning Juvenile Delinquency inVienna (Austria)Frank D. HearlyFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationFrank D. Hearly, Legislation Concerning Juvenile Delinquency in Vienna (Austria), 35 J. Crim. L. & Criminology 152 (1944-1945)LEGISLATION CONCERNING JUVENILE DELINQUENCYIN VIENNA (AUSTRIA)Frank D. HearlyIt is inevitable that juvenile delinquency definitely increases during andfollowing wars. Such increased delinquency in Vienna (Austria) after WorldWar I resulted in new legislation to meet the problem. Its primary aimwas not punishment but the treatment and care of juvenile offenders. Theauthor, a doctor of laws from the University of Vienna, a former practicing at-torney in that city, and a Master of Arts in Psychology, is thoroughly familiarwith that legislation and presents its principles here.-Editor.In the period following World War I Vienna held first placein Europe in legislation concerning juvenile delinquency. A briefoutline of the principles of this legislation, prior to the occupationof Austria by Germany in 1938, may therefore be useful.As early as 1811 the Austrian Civil Code had provided for thecare of juveniles and minor persons. This law provided thatguardians be appointed for orphans and illegitimate children, suchguardians to be under the control of the judge. In the course oftime the provisions of the law were enlarged to include childrenneglected or ill treated by their parents. In view of the greatlyincreased number of such cases during and immediately after thefirst World War this guardianship was taken out of the hands ofindividuals and entrusted to associations and agencies devoted tothe care of the young.The City of Vienna created the Juvenile Board, which wascharged with the general guardianship of all juveniles who didnot receive appropriate care and education at home and thereforewere exposed to the dangers of neglect. The Juvenile Board wasprovided with a staff of well-trained social workers of both sexesand was further assisted by private agencies.It was upon the above mentioned institutions that later legisla-tion concerning juvenile delinquency was based, namely the lawentitled: "Law concerning the treatment of juvenile offenders"(Juvenile Court Law), published in 1928. The primary purposeof the law was not punishment but the treatment and care of ju-veniles. The law applied to any person under the age of 18 yearsat the time an offense was committed and included: educationalmeasures, penal measures, legal proceedings, and infliction ofpunishment.The vital points of this law are:Educational Measures1) If a juvenile under the age of 18 years commits an act pun-ishable under the provisions of the Penal Code and if it is obviousthat his delinquency was due to his lack of education, the JuvenileCourt takes the necessary tutelary steps without regard to punish-ment of the crime. In such a case the juvenile may be put underJUVENILE DELINQUENCYeducational control or he may be sent to a public educationalestablishment, a boys' home, or to an approved family. Beforethe Court takes the appropriate educational measures, it mustcommunicate with the "Juvenile Board" or the local "JuvenileCourt Aid." If the "Juvenile Board" or the "Juvenile Court Aid"is prepared to take care of the juvenile, the Court may leave fur-ther educational measures to these agencies.2) In public educational establishments the juveniles receiveroom, board, clothing, and instruction. They shall be prepared inan adequate way for earning a living. They shall be kept as far aspossible in the open air and kept occupied with gardening andfarming.They must remain where they are placed as long as requiredfor their education, but in any case are dismissed at the age of20 years. After a stay of one and one-half years in an educationalinstitution the director may send the juvenile to an approved fam-ily or to another institution or to suitable employment; after astay of three years he may permit him to leave. An honorary visit-ing committee composed of five persons and nominated by the de-partment of justice sees that the instructions regarding the treat-ment of the pupils of public educational establishments are carriedout, and to that end the committee is required to visit these estab-lishments at least once a month.Penal Measures1) Minor persons, i.e., persons under 14 years of age, chargedwith an action under the provisions of the Penal Code are notcapable of guilt.2) Juveniles charged with an action under the provisions ofthe Penal Code shall not be sentenced, if, for special reasons, theyare not mature enough to comprehend the illegality of their ac-tion, or to act in accordance with their comprehension.3) Otherwise to juveniles charged with an action under theprovisions of the Penal Code the following special measures haveto be applied:a) Only jail sentences may be imposed (instead of the moresevere prison).b) Instead of imprisonment for life a period of punishment upto ten years shall be inflicted. (Capital punishment had been abol-ished in Austraia in 1919.)c) The maximum penalty must be reduced to half that exactedunder the Penal Code.d) Discrimination otherwise connected with punishment underthe Penal Code may not be inflicted.e) Control of juveniles is not to be entrusted to the police.f) Expulsion from his domicile is prohibited where there isdanger of consequent neglect.FRANK D. HEARLYg) If imprisonment of a juvenile is necessary and it is impos-sible to predict with any degree of certainty the length of timerequired to correct his destructive tendencies, the Court may fixa skeleton punishment within a minimum and a maximum pen-alty, until the purposes of the punishment are achieved.h) Instead of exacting a short imprisonment or a fine theCourt may leave the correction of the juvenile to the personcharged with his education or to the school. In less serious casesthe Court may simply admonish the juvenile.4) If there is a possibility that without detriment to the admin-istration of justice or to the juvenile himself the carrying out ofa sentence and the infliction of punishment might be avoided andeducational measures substituted, the Court may suspend sentencefor a probationary period of from one to five years. The JuvenileCourt may give all necessary instruction to protect the juvenilefrom relapse during his probation. The Court may alter such in-structions at any time, may extend the time of probation, or placethe juvenile under control. If it becomes obvious during the timeof probation that the correction of the juvenile cannot be achievedby the more lenient measures, the suspended sentence may becarried out.Legal Proceedings1) A separate Criminal Court has been established for dealingwith juvenile delinquents. It functions at the same time as theCourt for the protection of wards under 18 years who are notreceiving the necessary education.2) In cases which belong to the competence of the Jury inusual criminal procedure, a Jury Court (consisting of Judges andlaymen) is competent with juveniles.3) In the Jury Courts the presence of one teacher is manda-tory, and that of one practicing or retired social worker advisable.If the accused is a girl, a woman shall be a member of the Court.4) Only judges who excel in pedagogical understanding maybe appointed judges in juvenile delinquency matters. It is advis-able that they shall have studied psychology, psychiatry or peda-gogy and that they have had experience at a Court for the pro-tection of wards.5) The public prosecutor need not prosecute in cases involvinga trifling offense, when the Court for the protection of wards hasalready taken adequate steps and further measures do not appearnecessary.6) If both adults and juveniles are involved in an action theprocedure against the juvenile delinquent must be carried outseparately from that against the adults.7) In the procedure against the juvenile all circumstanceswhich may be useful for the judgment of his bodily and mentalJUVENILE DELINQUENOYcharacter must be investigated. In any doubtful case the juvenilemust be examined by a physician.8) The Criminal Court shall collaborate with the "JuvenileBoard" and with the "Juvenile Court Aid." These agencies mayinvestigate the personal circumstances of the juvenile, check theobservance of the instructions given him, and observe the successof these orders.9) The juvenile must be provided ex officio with defense coun-sel in criminal procedure.10) Imprisonment on remand is to be avoided as far as pos-sible. Juvenile prisoners upon trial must be kept separate fromadults. Solitary confinement must be avoided if possible. Dur-ing the imprisonment on remand the juvenile has to be kept occu-pied and his education uninterrupted.11) The examining magistrate may take part in the session ofthe Court and in its decision. He must be excluded however if thejuvenile, at least at the beginning of the session, opposes his as-sistance.12) Time and place of sessions in juvenile matters must befixed in such a way that the juvenile does not come in contact withthe adult defendants.13) During the session the judge may order the juvenile de-fendant to leave the session-hall temporarily if any discussionsto be conducted might have a bad influence upon him. The dis-cussions conducted in the juvenile's absence need not be com-municated unless this is in the best interest of the juvenile.14) The publicity of the session must be suspended ex officioor on motion if required for the good of the defendant. Thismeasure also applies to the publication of the sentence. The ju-venile's parents, teacher, guardian, and deputies of the "JuvenileBoard" and "Juvenile Court Aid" may assist, however, at thesecret sessions.15) Sentences imposed on juveniles must not be mentioned incertificates of good conduct, if a penalty was for not more thantwo years and if the juvenile has been blameless for five yearsfollowing the expiration of that period.Infliction of Punishment1) Persons charged with the care of juvenile prisoners shouldexcel in pedagogical understanding. They should be familiar withthe principles of psychology, psychiatry, and pedagogy in connec-tion with their occupation.2) The aim of the punishment is to train the juveniles in self-control, diligence and social attitude.They shall be trained for earning a living according to theirabilities.They are to be treated with earnestness and kindness.FRANK D. HEARLYTheir sense of honor must be developed and treated with con-sideration.The prisoners receive regular educational instruction.Their physical development is promoted by gymnastics, sportsand games.3) Juvenile prisoners must be separated from adult prisoners.There may be no contact between the two groups. Imprisonmentof more than one month's duration must take place in special es-tablishments or departments for juveniles.4) Juveniles must serve their imprisonment in community.They are to be kept apart from their fellow prisoners only fortheir own good or for that of their fellow-prisoners.In the case of solitary confinement the juvenile has to be keptin a different cell by day and by night. In the open air, for at-tending divine service, and for classes he may be admitted to thecommunity of his fellow-prisoners. In any case, juveniles kept insolitary confinement shall receive at least two visits daily, suchvisits lasting at least half an hour each.5) If there is danger that the infliction of the punishment ap-plied in the general way might harm the juvenile, especially byaggravating his morbid or abnormal state, or if it appears thatthe aim of the punishment might not be achieved for some reason,then-after the hearing of the testimony of a physician-theCourt may order exceptional measures. These exceptional meas-ures may have to do with the form of confinement of such prison-ers, their movement in the open air, their education, occupation,or food. Such prisoners have to be kept in a special departmentof the prison and are under constant control of a physician.

Legislation Concerning Juvenile Delinquency in Vienna (Austria)

https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=3285&amp;context=jclc

Legislation Concerning Juvenile Delinquency in Vienna (Austria)

Abstract

Similar works

Full text

Available Versions

Northwestern University Illinois, School of Law: Scholarly Commons