The Pre-Trial Detention Conference for Juveniles: What the Defense Prepares

The pre-trial detention conference is a specific form of social network conference tailored to the detention situation. It is moderated by the probation services provider NEUSTART and brings the social network of the accused, parents, siblings, teachers, training supervisors, therapists, child and youth welfare services, together at one table to develop a written plan for the future. This plan is the decision-making basis on which the court examines whether pre-trial custody can be replaced by less restrictive measures.

The trigger is always pre-trial custody that has already been imposed. The conference is not an instrument to avoid custody at the arrest stage, at that stage the substitutions under section 35 JGG apply directly, but a tool to shorten or lift the existing custody. Three structural features distinguish it from other procedural steps: preparation time is unusually short at three to ten days; the conference takes place inside the prison because the juvenile is in custody; and the resolution is developed during a protected family-only phase in which neither professionals nor probation officers are present.

In practice the pre-trial detention conference is run exclusively by NEUSTART as the probation services provider. It has been available nationwide as a regular service since 1 November 2014 and was anchored in section 35a JGG with effect from 1 January 2016. It is available in all Austrian provinces and explicitly also for young adults, that is, accused persons who had not yet reached the age of twenty-one at the time of the offense.

Section 35a JGG, the conference provision itself. Paragraph 1 authorises the court to instruct the head of a probation office to organise a social network conference; otherwise, an opinion of the juvenile court welfare service on the appropriateness of such a conference must be obtained. Paragraph 2 obliges the probation provider to develop the basis for the subsidiarity and proportionality assessment and to actively work towards lifting pre-trial custody by applying less restrictive measures. Paragraph 3 makes it clear: without the consent of the accused, no conference takes place.

According to prevailing doctrine the judicial "may" in paragraph 1 is in fact a conditional must: if the court departs from a recommending opinion of the juvenile court welfare service, a conference can be applied for by the public prosecutor, by the accused or by the legal representatives. The rejection of such an application can be challenged by way of an appeal. From the defense perspective this means: the application for a conference is a separate procedural step which is filed by the defense and pursued further if necessary.

Section 35 paragraph 1 JGG, subsidiarity and proportionality. The specific examination, stricter than under adult criminal law. Pre-trial custody against juveniles must not be imposed, and the juvenile must be released, if the purpose of detention can be achieved by family-law measures, where appropriate combined with less restrictive measures under section 173 paragraph 5 of the Austrian Code of Criminal Procedure. Pre-trial custody must furthermore not be imposed if the disadvantages associated with it for the personality development and the future progress of the juvenile are out of proportion to the importance of the offense and the expected sentence. Critically in practice: the threatened loss of a school place, an apprenticeship or a job regularly weighs against detention. It is precisely this examination that the conference outcome substantiates.

Section 173 paragraph 5 of the Code of Criminal Procedure, less restrictive measures. Contains the enumerated list from which the conference assembles its substitution package: a solemn promise, residence and stay obligations, contact bans, reporting duties, deposit of travel documents, provisional withdrawal of the driving licence, security deposit, and, the key tool in juvenile criminal law, provisional probation supervision under section 179 of the Code of Criminal Procedure with therapy and treatment requirements.

Section 179 of the Code of Criminal Procedure, provisional probation supervision. The legal basis on which NEUSTART is tasked with supervision after release. In practice this means high-frequency contact, up to two personal meetings per week, and the duty of the probation service to report any breaches of conditions to the court without delay. Consent of the accused to provisional probation supervision is in practice congruent with consent to the conference under section 35a paragraph 3 JGG.

Section 29e of the Probation Service Act and section 39 JGG. Section 29e of the Probation Service Act assigns the social network conference to the probation provider; section 35a JGG explicitly refers to it. The mandatory necessary defense in pre-trial custody for juveniles follows from section 39 JGG, in particular from the "defense lawyer on standby" rule under section 39 paragraph 3 JGG which applies throughout the arrest and detention phase. The defense lawyer is not a statutory mandatory member of the conference under section 35a JGG, but is in practice an indispensable procedural actor, preparing, accompanying and using the conference outcome.

The conference follows a standardised five-phase scheme and is held inside the prison, typically in a therapy room or meeting room. It involves two groups of people: the justice and social-services side (the NEUSTART coordinator as moderator, the provisional probation officer, the juvenile court welfare service, the child and youth welfare provider) and the personal environment of the accused (parents, step or foster parents, grandparents, siblings, close friends, partner, supplemented by teachers, training supervisors, street workers, therapists, carers).

The court is not personally present, it commissions the conference and assesses the outcome afterwards. The defense lawyer is not a statutory member but in practice sits at the table because mandatory defense in pre-trial custody could otherwise not be ensured and because the contents of the conference are later used in the detention review hearing.

The NEUSTART coordinator moderates in a non-prescriptive style: structuring the process without dictating its substance. The provisional probation officer formulates the so-called concern, a description of the risks that must be cleared away so that release can be defended. From this formulation of concern the topics emerge on which the social network develops its plan.

Preparation time is three to ten days, considerably shorter than the roughly six weeks of a regular social network conference. Outcomes should be available before the first detention review hearing, that is, within fourteen days of the imposition of pre-trial custody, so that the conference outcome feeds into the subsidiarity and proportionality assessment there. From the defense perspective this is also the central time axis: the earlier the application for the conference is recorded, the more pressure is created for a timely arrangement.

From the defense perspective what counts is not the plan as such but its capacity to mirror each specific detention ground under section 173 paragraph 2 of the Code of Criminal Procedure with a tailored package of less restrictive measures. The detention judge does not examine in the abstract whether the social network is viable, he examines specifically whether the bundle of obligations achieves the same purpose as pre-trial custody.

Three further levers complement this mirroring. First, the personality-development argument under the second sentence of section 35 paragraph 1 JGG: the threatened loss of a school place, an apprenticeship or a job must be evidenced specifically and in writing, through a confirmation letter from the school, the training company or the employer. These confirmations are obtained in the conference itself and attached to the plan; they are often the argument that tips the proportionality assessment.

Second, provisional probation supervision under section 179 of the Code of Criminal Procedure: it is expressly applied for and positioned in the plan as a clamp around all the other obligations. This ensures that breaches of conditions are detected quickly and reported back to the court, the detention judge knows that the substitution is supervised.

Third, the closed concept: the plan must be readable as an integrated model in which the obligations support each other. Individual measures presented in isolation experience suggests are less persuasive to detention judges than a package in which housing, daily structure, therapy, probation and contact bans are recognisable as a coherent mechanism.

The most important defense work happens before the conference, not in it. Four mandatory tasks belong in every client meeting in the prison, ideally before the probation officer's initial conversation, in any event within the preparation phase.

Task 1, examination of the detention order. Which detention grounds does the order specifically rely on? This question determines which obligations in the later plan must mirror which ground. Without this initial examination the plan threatens to fail through scattered content rather than targeted accuracy.

Task 2, client briefing inside the prison. Explain the importance of consent under section 35a paragraph 3 JGG: without the client's consent there is no conference, and without the subsequent probation plan the client remains in pre-trial custody. Walk through the legal consequences of every obligation that may be taken on, contact bans, residence requirements, therapy appointments, reporting duty. Protect against self-incrimination in the open family-only phase: what is said in the conference is not formally recorded but may take effect later. The defense lawyer must actively make sure that family openness does not lead to substantive content that is harmful in criminal terms.

Task 3, gather and bundle evidence. Confirmation of the place of accommodation (parents, relatives, supported living group, child and youth welfare facility); school, apprenticeship or job confirmation; therapy or treatment commitment with a specific institution and appointment; statement of involvement from the child and youth welfare service. These documents are ideally produced inside the conference and attached to the plan, a plan without supporting documents has no effect in the later application.

Task 4, brief the social network. Parents and close persons usually do not understand that the conference takes place "in the justice system", they perceive it as a family conversation. Brief them in advance on language, tone and avoidance of attributions of guilt: the conference is future-oriented, not a way of dealing with the past. Anyone who morally condemns the client during the conference directly damages the special-prevention impression that the plan is meant to make on the court.

The conference produces a conference outcome, translating it into a legal application is the task of the defense lawyer. Practice yields a five-step approach.

First, preparing the conference outcome into a coherent release concept. The written plan is supplemented by a brief defense statement that frames the concept in legal terms: what the plan covers (housing, daily structure, supervision, therapy, obligations) and which supporting documents are available for each component.

Second, legal classification by detention ground. For each ground supporting the order it is shown separately which package of obligations neutralises it. This allocation prevents the court from perceiving the plan as an unstructured feel-good concept, it shows step by step that the subsidiarity assessment is concretely satisfied.

Third, formal application under section 173 of the Code of Criminal Procedure in conjunction with section 35 paragraph 1 JGG. Lifting of pre-trial custody and replacement by the less restrictive measures agreed in the plan. The application is prepared in writing and presented at the detention review hearing. Where appropriate it is filed with the court in writing in parallel with the hearing so that it is on the file.

Fourth, coordinate fallbacks. If the detention judge considers individual obligations insufficient, it is better to work out short-notice improvements than to put the whole concept up for debate. Often an additional therapy-appointment confirmation or a tighter reporting duty suffices to close the gap, these improvements are prepared for the next detention review.

Fifth, appeal options. If pre-trial custody is upheld despite a viable conference outcome: detention complaint under sections 87, 88 of the Code of Criminal Procedure to the higher regional court. Where the continuation is manifestly disproportionate the constitutional rights complaint to the Supreme Court under the Fundamental Rights Complaint Act is also available, six-week deadline from exhaustion of the ordinary remedies. More on the appeal mechanics on our appeals page.

The pre-trial detention conference is an effective lever but never automatic. From defense practice and from the documented NEUSTART experience values four recurring risks emerge.

Risk 1, breach of obligations after release. The provisional probation officer reports breaches to the court without delay; renewed custody can then follow quickly. Before the conference the client and the parents must be clear that the conference outcome does not amount to a milder sentence and that every obligation taken on must be realistically achievable. Obligations that the client is foreseeably unable to keep do not belong in the plan.

Risk 2, stigmatisation within the social network. A reproachful family dynamic can derail the conference in substance, the client loses face and the social network unites against rather than with him. The participant list should be agreed with the coordinator before the conference; problematic individuals are excluded or replaced by alternative close persons.

Risk 3, missing or weak social network. In exceptional cases the conference is nevertheless held, then with a focus on the institutional network: child and youth welfare service, supported living group, social-pedagogical residential facility. The plan then carries through institutional structures rather than the family. The hurdle with the detention judge is higher in this constellation, the defense should pay particularly careful attention to the bindingness of the institutional commitments.

Risk 4, short preparation time. Three to ten days is little, especially in holiday periods or with shift work of the parents. Anyone who does not actively drive the preparation loses the time window before the first detention review hearing, and with it the leverage. In practice this means: from day one the defense lawyer works in parallel with the probation officer rather than handing the proceedings out of his hands.

A limit, finally, that cannot be compensated by preparation: in cases of repeated serious violence with ongoing addiction and without a therapy place, the conference is often without prospects. In such constellations the defense strategy shifts to detention complaints, indictment preparation and where appropriate diversion or suspended sentencing in the trial.