Strengthening the Legal Protection of Children Under 15 Years – Criminal Law

From July 1, 2024, an amendment to the Youth Justice Act (Act No. 218/2003 Coll.) came into effect, significantly strengthening the procedural rights of children under 15 years of age who have committed criminal acts.[1]Below are summarized the reasons for this amendment and the changes it brought.

Up until July 1, 2024, it was a rule with minimal exceptions that a child under the age of 15 would be brought to court for any serious criminal offense. Yet, the mere act of bringing a child under 15 before a court is a very demanding situation for them, one that even adult offenders often do not experience, for instance, those whose guilt and punishment are decided through a criminal order "from the desk." Additionally, the law did not regulate the mandatory representation of a child under 15 by a lawyer, making it significantly more difficult for them to navigate the entire process, which primarily affected the procedural rights of children under 15.

These shortcomings were also criticized by international bodies, especially the European Committee of Social Rights, the UN Human Rights Committee, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the Committee of Ministers of the Council of Europe.

From July 1, 2024, the law divides proceedings concerning acts otherwise criminal committed by children under 15 into three phases:

• Clarification phase, in which the police investigate the circumstances of the otherwise criminal act and identify the perpetrator.
• Proposal phase, where the prosecution office now has the explicit option to assess whether to submit or not submit a proposal for imposing measures to the youth court.
• Court phase, where the youth court decides on imposing measures on a child under 15 after the prosecution office decides to submit a proposal for initiating this phase of the proceedings.

Simultaneously, a child under 15 now has the right to be represented by a legal representative when giving a statement. This eliminates the possibility of distorting children's testimonies before the police solely due to the prevailing atmosphere, which can affect children more strongly than adult offenders. These situations could lead to a child preferring to confess to something they didn't do or that happened differently than presented by the police, just to end the uncomfortable situation of being interrogated as soon as possible.

The legal representative of a child under 15 can only be a lawyer. The lawyer will either be chosen by the child’s legal guardian or appointed from a list of lawyers maintained by the court.

The fee of a chosen lawyer depends on the agreement between the child (or their legal guardian) and the chosen lawyer. The costs of legal representation provided by an appointed lawyer are borne by the state. However, the law allows for the possibility, in cases where it is fair and justified by the financial situation of the child under 15 or their legal guardians, to impose on them the obligation to reimburse the state for the costs incurred by paying the appointed lawyer's fee.

A somewhat unfortunate new provision of the law prevents the lawyer from being represented by a trainee lawyer or their employee. Especially in terms of access to the file, this restriction, in my opinion, lacks any relevant justification, and the concept introduced in § 35 paragraph 1 of the Criminal Procedure Code, which allows for the representation of a lawyer (defense counsel) by a trainee lawyer even in cases where the lawyer must participate in all other actions, should have been maintained.

Overall, however, it is necessary to evaluate the latest amendment to the Youth Justice Act positively.

[1]The behavior that would be considered a "criminal offense" for adults is referred to as an "act otherwise punishable" for children under the age of 15, as a child under 15 years old is not criminally responsible as an offender.