Mr. Baptiste Viredaz is a graduate in law from the l’Université de Neuchâtel (2001) and in criminology from Université de Lausanne (2003). He has notably worked with with professor Andre Kuhn in Lausanne (2002-2007), and Martin Killias in Zurich (2006-2007). He has published a number of studies on criminal law for minors and juvnile delinquency, essentially on Swiss law. He is a doctor in criminal law (2008). He is also head lecturer at the University of Lausanne (2006), specifically in criminal law for minors. He has significant experience in court, at the heart of the public ministry in county court. In short, he is also a lawyer for the bar in Vaud.

QUESTION.– As a lawyer and a head lecturer at the University of Lausanne, how do you perceive the evolution of justice for minors in Europe? What are the current trends in terms of research into juvenile delinquency?

ANSWER.– It is difficult to make a global assessment on a European problem, as systems vary considerably from one country to another. The Swiss system clearly follows the Social Welfare Model, and attaches particular importance to the protection and education of minors. Other countries follow the same model, including Germany and Belgium. Other states focus more on the justice act and advocate rights which are more similar to those of adults, with notably more sever punishments. This is the case in England, but also, and to a lesser extent, in France. Several countries allow for a more mixed system inscribed in a protectionist model, but cater for the most violent delinquents, by exception, with criminal laws for those above the age (this is notably the case in Holland, save for recent modifications). I’m less interested in socio and/or criminology research and so I am unsure as to how to answer your question. To my knowledge, the situational approach is recurrent. In fact there has been a lot of research into the influence of environment on minors as an explanation for juvenile delinquency.

Q.– As a professor at the University of Lausanne, in what political and social context does ''Federal law as it concerns penal conditions for minors'' come about?

A.– This new law acts alongside the reform of the general part of the criminal code for adults, which was initiated in 1983. The context is a reform of the sanctions system, with the clear aim of rejecting the suspension of liberty as an ultima ratio measure. The federal law governs penal conditions for minors (see DPMin below) which was no doubt created in a favourable political context. However, this context has since been downgraded and there has been a noticeable strengthening of laws on immigration, a theme which includes juvenile justice. Certain extreme right political parties do not hesitate in requesting the possibility of sending juvenile delinquents of foreign nationality to their countries of origin, or to introduce parental responsibility on a penal level. Furthermore, the lenient nature of the DPMin is regularly pointed out. As well as the law as it stands, it is also the insufficiency of ad hoc measures which pose a problem. However the Swiss counties (charged with implementing sanctions) are permitted until 31st December 2016 to establish adequate measurres. Various establishments are therefore currently putting this together. The evolution of juvenile delinquency, which is rising both on quantitative (offenses) and qualitative (violence) levels, also poses a problem, even though the Swiss levels are relatively low. The figures are regularly used by politicians, with the aim of justifying a tougher stance on justice. It is worth noting however that the last figures released by the Swiss Federal Office for Statistics showed that there was a fall in quantitative and qualitative juvenile delinquency in 2010, which leads one to think that the DPMin is more efficient than some would say.

Q.– What was the situation in Switzerland for minors in conflict with the law before the approval of the “Federal law governing penal conditions for minors”?

A.– It was largely similar to that of today. Principle modifications were,

1) Modification of the threshold for legal infancy, which moved from 7 to 10 years;

2) Introduction of mediation;

3) Introduction of judicial dualism (the possibility of delivering a sentence and support measures)

4) Introduction of custodial sentences of 4 years duration, as opposed to the previous conditions.

Q.– What are the principle characteristics and objectives of this new law?

A.– This refers to the end of the second question and the first question. To summarise, the principle characteristic of DPMin is that it deals with the rights of the offender and not the act, which aims to prioritise the protection and education of the minor. Custodial sentences (placement in an institution or prison) are used as a last resort (ultima ratio). Similar to the Social Welfare Model, the DPMin also leans towards a greater accountability for the minor (the Restorative Justice Model), notably with mediation, and also personal benefits (community service), which can be put in place in favour of the victim. This is taken into consideration during the criminal process. Furthermore, it would be inexact not to recognise a certain strengthening of measures, with the introduction of much more rigid standards for proceedings and the introduction of longer custodial sentences (4 years as opposed to 1). The goal of this law is obviously to efficiently combat delinquency, notably in reducing repeat offenses. Beyond this, the aim is not only to prevent the juvenile delinquent from becoming an adult delinquent, but also to allow him/her to benefit from social services (basic and professional) in order to better deal with life on the outside, finding a job, finding somewhere to live, acceptable standards of living, etc....

Q.– What principles should be followed in order to ensure the integral protection of the rights of children and adolescents?

A.– The principles are stated in articles 2 and 4 of the DPMin (the federal law on prosecution as it applies to minors): they focus on education and prevention.

Article 2 DPMin

1) The protection and education of minors is included in the application of present law.

2) Particular attention is given to living conditions and the familial environment of the minor, and also to the development of their personality.

Article 4 DPMin

1) The protection and education of minors is included in the application of present law. The age and degree of development of the minor should be taken into consideration in an appropriate manner.

2) Criminal authorities respect the rights of the minor and of allowing him/her active participation during all stages of the penal process. Subject to particular provisions in proceedings, they are attended to personally.

3) They ensure that criminal proceedings no longer impinge upon the private life of the minor and upon the sphere of influence of his/her legal representation.

4) When this occurs, the legal representatives or the civil authorities are implicated. In addition the fundamental principles defended by the ECHR and the UN Pact II are very important (human dignity, banning of forced travel, proportionality in sanctions, banning of discrimination, access to a judge, etc....)

Q.– To what age group is this law applied and are there provision for those younger (children in conflict with the law who are not of the age of criminal responsibility) and older than this age (young adults)?

A.– The DPMin applies to offenders who are between 10 and 18 at the time of committing the crime. Beforehand, only civil justice could intervene (legal guardianship measurers, or support placements). Upon reaching his/her 18th birthday, the young person is considered an adult, with the exception of someone who is suffering from developmental problems. In this case, the Swiss penal code makes provisions for appropriate measures for young adults (art. 61 CP). Said measures may be delivered for delinquents who are between 18 and 25. They aim for specific rulings, within the main goal of treatment rather than punishment, and evidently, dealing with the sometimes delicate transition between adolescence and adulthood.

Q.– What are the alternatives to custodial sentences and in what proportion are they used? What types of resources are available to promote the socio-professional rehabilitation of the minor?

We do not refer to alternative programs in this sense, but there are numerous sanctions other than custodial sentences, some of which I have mentioned, as a last resort used as alternative pleading. Amongst these sanctions, surveillance and personal assistance measures should be mentioned, which sees the minor and his/her parents helped by a service or a professional, with the aim of better managing the process. Obviously ambulatory treatment also allows for the avoidance of detention. Juvenile community service should also be mentioned here, which is similar to community service for adults. Notably, these provision can be carried out to the benefit of the victim, as long as they agree – but also to the benefit of the offender, in the form of classes or similar activities, which aim to encourage the young person to take responsibility for his/her actions, and in particular those activities which lead or encourage them commit crime t (dependence on drugs, alcohol, medication, gambling, problems with violence, membership of a gang, etc). Community service represents half of all sentences given to minors by Swiss courts. Mediation should also be mentioned, which permits a suspension of proceedings, in order to find a non judicial issue in the dispute. The process of mediation is therefore independent of justice, and if successful, may lead to the closure of criminal proceedings. Mediation can begin at any point during the criminal justice process. In terms of the promotion of professional rehabilitation, the DPMin prioritises the need to provide the minor with adequate training and education, firstly by permitting the necessary activities within the prison walls and according to independent prison organisations; this anticipates European standards elsewhere (cf. not. art. 77ss of Criminal Regulations of the Council of Europe ).

Q.– What psychotherapeutic measures are available for juvenile delinquents who are of an age below that recognised by the law?

A.– It is difficult for a lawyer to answer this question, as it falls within more of a medical domain. The law only mentions, in a general manner, educative and/or therapeutic measures. It deals with the same charges in terms of medicine as that of non delinquents, in addition to programs on topics such as overcoming violence, frustration, withdrawal symptoms faced by drug addicts of other forms of social addictions/dependence (gambling, sex) or medication (dependence on pharmaceutical drugs), the breaking up of gangs, etc. Once more, a paediatrician, a psychiatrist, psychologist or an educator would be better suited to answering this question in more detail.

Q.– What training do professionals working with minors go through? Do the judges responsible for applying this law receive specialist training? What is the training for lawyers?

A.– There is no specific training for lawyers. This could be developed given that the role of the lawyer is increasingly important in the Swiss criminal justice system. Judges generally specialise in a specific area and, in most regions, would only deal with cases relating to juvenile delinquents for example. This is essentially on-the-job training and is on-going (participation in meetings and conferences, collaboration with regional, national and international organisations, etc). In terms of people who intervene in the area of sentencing (in particular the field of implementation of a sentence), there is no definitive training, given that sentences vary and make involve various professions. In general most of these interventions (prison directors and guards, educators, trainers, teachers, medical staff, etc...) are aware of the particulars of juvenile delinquent cases and of children’s’ sentences, which also forms part of previously adapted training or continual subsequent training (the Swiss Centre for Staff Training at Fribourg prison, Institut Universitaire Kurt Bosch in Sion, etc...)

Q.– According to this law, what legal services are available to minors?

A.– There are multiple options available to the minor. This is an integral part of the prioritisation of protection and education of the minor. Criminally, the minor is very soon assigned an accompanying educator, usually from the court of competent jurisdiction. The assigned professional may accompany the minor through the entire penal process. There is also the possibility of requesting the services of a lawyer and, if there are no financial means for paying for one and the case is sufficiently strong, the minor will be provided with legal assistance. Civil authorities may also take part, with the aim of putting guardianship measures in place, or to favour the intervention of prevention services for the young person in the concerned region.