Juvenile Criminal Law in Austria: What Parents and Juveniles Need to Know

From a defence perspective, three things matter most in the first hours.

First: your child does not have to give a statement at the police station. The right to silence applies without restriction in juvenile criminal law, just as for adults. Anyone who does not know this often talks themselves into accusations that are hard to undo later. Tell your child to remain polite, to give personal details, but otherwise to make no statement on the substance until defence counsel has reviewed the file.

Second: in some constellations, the involvement of defence counsel is mandatory anyway, even without an application, even without consent. For indictable offences (those with a maximum sentence of more than three years) and after every arrest, questioning may take place only in the presence of defence counsel (Section 39 para. 1 No. 1 JGG). Your child cannot waive this counsel, and as parents you cannot waive it either. If the police cannot reach a chosen counsel, an on-call counsel is brought in.

Third: in the juvenile criminal proceeding, parents have a dual role. They are persons entitled to participate, with their own rights: they receive access to the file, they can file applications themselves, they can even bring an appeal against the will of the child (Section 38 JGG). But the first conversation with defence counsel should still take place between the lawyer and your child alone. That is no sign of mistrust, it is the only way to hear an account that is not filtered by parental expectations. Conflicts of interest that would later complicate the proceedings can be identified from the outset this way.

If the police arrive not with a summons but with a house-search warrant, the defence rules on house searches in criminal proceedings apply in addition, they sit alongside the JGG protections.

The JGG distinguishes three groups, and the question of which one your child falls into determines almost everything that follows.

Not yet of age are children before the completion of their 14th year. They are not criminally responsible. If proceedings are brought against a child, for example because they were caught shoplifting or committed another property offence, the public prosecutor terminates the proceedings (Section 190 No. 1 StPO); the matter goes to Child and Youth Welfare and, where appropriate, to the guardianship court. There is no criminal proceeding.

Juvenile is anyone who has completed the 14th year but not yet reached the 18th. For this group all special rules of the JGG apply: modified sentencing ranges, extended mandatory defence, a person of trust at the questioning, protection in pre-trial detention, notification of Child and Youth Welfare, and much more.

Young adults are those aged 18 to under 21. The JGG applies to them only in part (Section 19 JGG). The sentencing-range modifications apply in part: youth regularly serves as a special mitigating ground. However: the extended mandatory defence under Section 39 JGG, the special pre-trial-detention protection under Section 35 JGG, and the limitation of victim rights (the bar on private prosecution) do not apply. Procedurally, young adults are therefore treated like adults; for sentencing, like juveniles.

What matters is always the age at the time of the offence, not the time of trial. Anyone who commits an offence at 17 and is tried at 19 remains in the juvenile criminal proceeding, with all the protective rules that apply there. Criminal responsibility begins on the day after the 14th birthday (Section 1 JGG in conjunction with Section 68 StGB).

A small but practically important rule: if it is doubtful whether someone had completed the 18th year at the time of the offence, the provisions for juveniles apply (Section 1 last sentence JGG). The doubt rule is a real allocation of the burden of proof; in borderline cases the milder yardstick of juvenile law applies.

Even if your child is 14 and has actually done something that appears in the Criminal Code, there are two independent paths on which liability can fail.

Delayed maturity (Section 4 para. 2 No. 1 JGG). A juvenile is not punishable if, for specific reasons, they are not yet mature enough to recognise the wrongfulness of the act or to act in accordance with that recognition. The yardstick is high: a developmental delay that comes close to that of someone not yet of age. According to settled case law (OGH 21.1.2009, 15 Os 184/08k), parental divorce, poor school grades, or the usual difficulties of puberty are not sufficient. The picture is different where there is a physical or psychological illness, severe neglect, or substantial social deficits.

From a defence perspective this means: an application for a psychiatric expert opinion may be the right path. But it has a double-edged side: the opinion can also establish lack of criminal capacity under Section 21 para. 1 StGB, which can lead to commitment to an institution for mentally abnormal offenders. Such an application therefore needs careful consideration.

A misdemeanour without serious fault (Section 4 para. 2 No. 2 JGG). If a juvenile, before the completion of their 16th year, commits a misdemeanour (carrying a maximum sentence of up to three years), is not seriously at fault, and no special grounds require the application of juvenile criminal law, they are exempt from punishment. This is a real procedural brake for the age group of 14- to 15-year-olds, especially for one-off, rather impulsive offences without significant resulting harm. “Serious fault” is not measured by the resulting damage alone, but by individual blameworthiness; level of development, deficits in upbringing, and weighty mitigating factors can separate even severe consequences of an offence from serious fault.

Anyone who has understood that the justice system, when dealing with juveniles, does not necessarily think in terms of “convict or acquit” but in escalation levels finds it easier to assess a defence strategy. Special prevention, that is, the effect on the juvenile themselves so that they do not become criminally liable again, is in the foreground. General prevention (deterrence of the public at large) is a determining factor only by way of exception (Sections 5 No. 1, 19 para. 2 JGG).

Level 1: dispensing with prosecution (waiver of prosecution, Section 5 No. 4, Section 6 JGG). The mildest response. For juvenile offences carrying a maximum sentence of up to five years (within the meaning of Section 5 No. 4 JGG), the public prosecutor must terminate the prosecution under certain conditions if no further measures are required and the offence did not cause death. This is not an act of grace, but a legal entitlement; if it is overlooked, the court can terminate the proceedings at the trial stage.

Level 2: diversion (Sections 7, 8 JGG, for young adults Section 19 para. 2 JGG). Out-of-court resolution by victim-offender mediation, community service, a probation period, or a fine. In juvenile criminal law, two important particularities: there is no upper sentencing limit (unlike for adults, where diversion is excluded for sentencing ranges above five years), and general prevention is no obstacle. Community service is tightly limited: a maximum of six hours per day, twelve hours per week, 120 hours in total. For victim-offender mediation, the victim's consent is made easier. For diversion in narcotics cases, health-related measures (counselling, therapy) require the consent of the legal representative (Section 35 para. 6 SMG).

From a defence perspective, level 2 is very often the actual defence goal. But it rarely waits for you on its own; a good diversion application is filed in writing and early: with restitution, with proof of therapy or anti-violence training (e.g. via NEUSTART), with drug counselling for narcotics allegations, and with an apology to the victim. Anyone who stays passive here and hopes for a proposal from the public prosecutor often loses weeks.

Level 3: finding of guilt without sentence (Section 12 JGG). Already at the trial. The court establishes guilt but refrains from imposing a sentence because the sentence to be imposed would be minor and the finding of guilt alone is sufficient in terms of special prevention. “Minor” in practice means a custodial sentence of about three to four months (cf. OGH 25.9.2014, 12 Os 84/14s). Importantly: a finding of guilt under Section 12 JGG is not a prior conviction in the strict sense and is not taken into account as a prior conviction under Section 31 StGB in later proceedings.

Level 4: finding of guilt with sentence reserved (Section 13 JGG). A finding of guilt plus the threat of a sentence for a probation period, often combined with directives or probation services. The sentence is only actually imposed if the probation period does not run successfully.

Level 5: sentence. A fine or custodial sentence, modified under Section 5 JGG. We arrive here when the other levels do not suffice.

The strategic task of the defence is this: contribute everything that holds back this escalation earlier, and contribute it early and concretely, not just demand it but supply the supporting evidence.

Where a sentence is imposed, Section 5 JGG modifies the general sentencing ranges fundamentally. None of this is “nice to have” for the defence: the modifications are mandatory. Incorrect application leads to nullity under Section 281 para. 1 No. 11 StPO (cf. OGH 18.3.2009, 15 Os 194/08f).

Maximum sentences are massively reduced. A life sentence against juveniles is excluded. Where adults would face 10 to 20 years or life, the JGG provides a range of 1 to 15 years for 16- to under-18-year-olds, and 1 to 10 years for 14- to under-16-year-olds (Section 5 No. 2 lit. a and b JGG). Where the adult range is 10 to 20 years without life, in juvenile criminal law it is 6 months to 10 years (Section 5 No. 3 JGG).

Minimum and maximum are halved for other sentencing ranges. Section 5 No. 4 JGG is the central provision: for all other custodial sentences, the minimum is dropped entirely, and the maximum is reduced to half. Where adults risk “up to three years”, for juveniles it is “up to one and a half years”.

Fines. The number of daily rates is capped at half (Section 5 No. 5 JGG). The amount of the daily rate itself (4 to 5,000 euros under Section 19 para. 2 StGB) remains untouched. Fines based on substitute value or on the amount of damage may only be imposed to the extent that the juvenile's livelihood is not endangered (Section 5 No. 6 JGG).

Conditional suspension is extended. Whereas in adult criminal law conditional suspension is only possible up to two or three years, Section 5 No. 9 JGG allows conditional (or partly conditional) suspension even above these limits. In theory, six years of imprisonment for a juvenile offence can be wholly conditionally suspended if the special-prevention requirements are met and no special general-prevention obstacles stand in the way.

Mandatory defence as a precondition for a custodial sentence. Section 5 No. 12 JGG provides: a custodial sentence, even one suspended on probation, may only be imposed if the juvenile was represented by defence counsel throughout the entire trial. A breach means nullity. This rule is the strongest bracket around the juvenile criminal proceeding.

Young adults face a maximum sentence of 15 years instead of life. Exception: for offences against life and limb, against sexual integrity and self-determination, as a member of a criminal organisation or a terrorist organisation, and for crimes against humanity, the general sentencing range applies with a maximum of 20 years (Section 19 para. 4 JGG). A life sentence against young adults is excluded.

The differences between juvenile criminal law and adult criminal law at a glance.

Parents who are confronted with a criminal proceeding for the first time often feel as though they are on a route without signposts. In fact, juvenile criminal proceedings follow an orderly course with clear thresholds at which the direction of the proceeding is decided.

A particular constellation that especially worries parents is pre-trial detention. In juvenile criminal law it is strictly subsidiary: young people may only be held in detention for as long as is unavoidably necessary (Section 35 para. 1 JGG). In district-court proceedings, pre-trial detention is even absolutely impermissible (Section 35 para. 1a JGG); only the short-term measure of arrest remains. Before any decision on pre-trial detention, the question must be examined whether its purpose can be achieved by family-law orders such as residential placement, supervised housing, or by milder means, above all by interim probation services under Section 179 StPO. By court order, the probation service convenes a social-network conference (Section 35a JGG) that gathers these alternatives; it is, however, only permissible with the accused's consent.

In the juvenile criminal proceeding parents stand on three legs.

As legal representatives you are entitled to participate without representing the juvenile. That is a decisive point of Section 38 JGG: you act in your own name, not on someone's behalf. You can file your own applications, you have access to the file, you have an appeal right of your own. But you cannot replace or withdraw applications made by your child. Acceptance of a diversion offer, for example, is a matter for the juvenile; even if you are sceptical, you cannot decide that for them (Stanglechner para. 30.27).

As a person of trust you can be brought in for questionings outside of mandatory defence, but the choice rests with the juvenile. If your child names the teacher, the aunt, or a member of staff at Juvenile Court Assistance, that is a strictly personal right. In the case of arrest, indictable offences, confrontation, or immediate questioning, defence counsel takes your place anyway.

As the bearer of the lawyer's fees you are regularly under an obligation. The power of attorney and the civil-law fee claim must be considered separately: a juvenile capable of understanding can grant a power of attorney themselves, but the fee claim against the parents only arises if the legal representative consents or co-signs the engagement. For this reason, as defence counsel we additionally have the parents engage us. Where this exceeds the family's means, legal aid in proceedings is provided for (Section 39 para. 2 JGG); it does not require an application and is to be examined by a milder yardstick than the general legal aid under Section 61 para. 2 StPO.

A note on our own approach: let the first conversation with defence counsel take place initially without you. What your child tells should be told in the lawyer's office, not between the lines in front of you. Once the picture is clear, the family conversations follow; that is the right order.

When a juvenile criminal proceeding is over, parents almost always ask the same thing: “Will this stay forever?” The short answer: no, but with nuance.

Criminal record. Juvenile convictions are also entered, but with their own deletion periods under the Spent Convictions Act, shorter than for adults, depending on the sentence. Diversion and finding of guilt without sentence under Section 12 JGG are not prior convictions in the criminal record. Anyone who successfully completes diversion has no entry, not even as a blocking note. That is the central strategic reason why diversion is almost always the priority defence path.

School and apprenticeship. The notification system under Section 33 JGG is designed to protect against stigmatisation. School authorities are not notified as a rule, except in the case of a custodial sentence of more than six months, even if it is conditionally suspended (Section 33 para. 4 JGG). If a proceeding is later terminated or ends in acquittal, all bodies that have already been informed must be notified again to clear the record.

Working life. Certain authorities (the Aliens Police, the district administrative authority for traffic incidents without a finding of guilt) receive specific information; other bodies do not. This is an explicit statutory restriction; other notifications are only permitted to a limited extent in order to avoid stigmatisation (Section 33 para. 5 JGG).

Costs of the proceedings. The flat-rate costs that arise after a conviction are also to be declared irrecoverable in juvenile criminal law if payment would impede the juvenile's livelihood, for example if training, housing, or starting work would be jeopardised (Section 45 JGG). What matters is the age at the time of the cost decision.

The longer-term consequences of a juvenile offence therefore depend strongly on how the proceedings end, not only on that they end. Precisely for that reason, legal advice early on is worthwhile, not only when the verdict is served.

The JGG has been amended several times since 2022; the version currently in force can be retrieved on the RIS. Procedural rules, the enforcement of measures, and EU-law adaptations were affected on specific points. A politically noted initiative to lower the age of criminal responsibility from 14 to 12 years was discussed in the Justice Committee in April 2024 and rejected by a majority; the age of criminal responsibility remains at 14. What matters in any specific case is always the wording of the cited provisions in force on the day of the offence.