The German government has introduced a 10-point plan to improve protection against Islamist terrorism, following an attack on the Berlin Christopher Street Day. The plan includes measures to strengthen the security interest of the general public in the Youth Courts Act and to increase the minimum sentence for certain offenses, such as attacks with knives, to one year.
Sonka E. Mehner, a lawyer and vice-president of the German Bar Association, states that the planned changes may not actually increase security. She argues that the Youth Courts Act is designed to take into account the individual development and personality of young offenders, and that a blanket approach to sentencing may not be effective.
Changes to the Youth Courts Act
The government’s plan includes a proposal to strengthen the security interest of the general public in the Youth Courts Act, which could lead to more young offenders being tried as adults. Currently, the Act allows for young offenders to be sentenced under juvenile law if they are deemed to be still in the process of developing emotionally and intellectually.
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Mehner argues that this approach is necessary because the age of 18 is not a reliable indicator of a person’s level of maturity. She points out that two 19-year-olds can be at very different stages of development, and that a blanket approach to sentencing could lead to unfair outcomes.
Tougher Sentencing Laws Proposed
The case of Abdul Ballout, the perpetrator of the Berlin attack, has been cited as an example of the need for tougher sentencing laws. Ballout had previously been convicted of several offenses, including assault and robbery, and had been sentenced to 22 months of juvenile detention. However, his sentence was suspended, and he was released on probation.
Mehner argues that the decision to suspend Ballout’s sentence was based on a prognosis of his likelihood of reoffending, and that this prognosis was not necessarily incorrect. She points out that the court had taken into account Ballout’s previous offenses and his participation in a deradicalization program, and that the decision to release him on probation was based on a thorough assessment of his individual circumstances.
The government’s plan to increase the minimum sentence for certain offenses, such as attacks with knives, has also been criticized. Mehner argues that this measure will not necessarily prevent terrorist attacks, and that it could lead to unfair outcomes for young offenders who are still in the process of developing emotionally and intellectually.
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She points out that the current law already allows for severe sentences for serious offenses, and that the focus should be on improving the exchange of information between security agencies and the judiciary, rather than on introducing tougher sentencing laws. The plan to improve the exchange of information between security agencies and the judiciary is a welcome step, Mehner says, but it should be accompanied by a more detailed approach to sentencing.
Defining Dangerous Offenses
The issue of what constitutes a “dangerous” offense is also complex, Mehner argues. She points out that the law already provides for severe sentences for serious offenses, and that the introduction of a new minimum sentence could lead to difficulties in distinguishing between different types of offenses.
For example, the law already provides for a sentence of up to 10 years for serious bodily harm, and the introduction of a new minimum sentence could lead to confusion about what constitutes a “dangerous” offense. Mehner argues that the focus should be on improving the effectiveness of the justice system, rather than on introducing new sentencing laws.
The planned tightening of § 224 of the Criminal Code has also sparked criticism.
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Criminal Code Changes Spark Criticism
This would make what was previously a misdemeanor a felony under § 12 Abs. 1 of the Criminal Code. The criminal liability would thus be extended further, which could lead to difficulties in distinguishing between different types of offenses.
Difficulties in distinguishing between offenses
§ 224 Abs. 1 Nr. 2 of the Criminal Code already covers the use of a weapon or another dangerous tool. The question is where the new threshold lies when certain particularly dangerous types of offenses are to be punishable by at least one year of imprisonment.
The conditions for the transition from a misdemeanor to a felony must be precisely defined by law. A higher minimum sentence does not prevent a terrorist attack if a radicalized perpetrator is determined to commit the act.
