sou · GSB3122d3 · 2005-01-01 00:00:00 — The task of administering youth service was placed on the municipalities, although no formal obligation was imposed on them to do this. In its evaluation of the reform in autumn , the found that only just over half of the municipalities were able to arrange youth service. Our review of the sanction system has shown that there is a need for additional sanction alternatives for young offenders. It is important that there are alternatives that, to the greatest possible extent, can replace the use of fines and shorter periods of deprivation of . This need is particularly pressing for the age group 15 to 17. In this connection, we have found that youth service, correctly designed, can be a clear and educational sanction for young people. Youth service can also be considered as being compatible with the penal law principles of proportionality, predictability and consequence. We therefore recommend that youth service be introduced as a separate sanction for young offen- ders. We further recommend that it should be made mandatory for the municipalities to administer youth service. The present arrangements conflict with the principle of everyones equality before the law and cannot be considered as being compatible with Article 2 of the UN Convention on the Rights of the Child. Youth service cannot be ranked in order of severity in relation to the other sanctions. Our view is that the court should instead have the greatest possible ability to apply the sanction that is most appropriate in the individual case. However, the use of youth service should be restricted to other cases than those where only fines are stipulated for the crime in question. Although youth service as a separate sanction can be used for young offenders up to the age of 21, limited use should be made of it for young offenders aged between 18 and 20. Youth service is to consist of unpaid work that includes components that clarify the conditions of youth service for the young person and enable the young person to reflect on his or her life situation and discuss the crime he or she has committed. Youth service is also to consist of a concluding element where young people are given feedback as to how they have performed during enforcement of the sanction. The components that do not consist of work are to take up a small amount of the youth service hours in the sentenced. is to be empowered to issue regulations for the detailed design and management of youth service. The number of hours of youth service as a separate sanction shall be at least 20 and at most 150. The court shall also in future regard the young person as suitable for youth service in order to be able to sentence to this sanction. However, in the view of the Commission, the level for which a person shall come into question for youth service should not be set particularly high. A further prerequisite for the court being able to sentence to youth service is that the accused has consented to it. The social services are to draw up an individual work plan for each young person sentenced to youth service. A supervisor for the young offender sentenced to youth service is to be appointed at each workplace where the youth service is to be performed. Both the supervisor at the workplace and the social services are to check that the work plan is complied with. Poor conduct of a more serious kind is to lead to the prosecutor instituting court proceedings for variation of the youth service. When justified, the prosecutor or court may issue a caution to the young person. We recommend that issue regulations and general guidelines on the measures to be taken by the social services in situations where the conduct of the young person sentenced to youth service is unsatisfactory in various ways. In cases when major changes are required in an existing work plan, the matter should also normally be considered by the court. We consider that should also provide guidance in these situations. The social service sanction in combination with youth service or fines There are strong reasons of public benefit to use to the greatest possible extent the sanction that can be considered to be most effective for preventing the young person from re-offending. It is also important to avoid sanctions involving deprivation of as far as possible. The scope for using the social service sanction should in the light of this be as extensive as possible. It should therefore continue to be possible for the court to combine the social service sanction either with youth service or fines if there is a need for this taking into consideration the principle of proportionality. When the social service sanction is to be combined with an additional sanction, we recommend that it should be combined with youth service in the first place. Fines should in principle be used only when the young person is not regarded as suitable or does not consent to youth service. We recommend that should design youth service as an additional sanction through implementing regulations. The rucksack – various forms of support and supervison As a component in strengthening the co-operation between the agencies, care providers and schools involved, the Commission was instructed to make proposals on a model where a person is appointed to be specially responsible for the young person by supervision and follow-up, and co-ordination of the measures and actions taken by society, a so-called rucksack. In , the appointment of a contact person according to SoL is one of the most frequently used measures for children and young people. In the view of the Commission, an effective contact person, both according to SoL and LVU, can very well perform the intended rucksack role. The appointment of contact persons as a measure is therefore to continue to be available as to date. The persons who are contact persons for young offenders who risk establishing a criminal lifestyle need special expertise and supervision to be able to perform good work. We therefore propose that the measure of appointment of a contact person be developed into a more advanced form of support when necessary. We consider that this measure should have a special name to indicate that the trained contact persons are to engage in a more skilled form of contact activity. We propose the name . should provide guidance to the social services in the municipalities on the demands that should be placed on contact persons and and on the social services. We regard it as very important that the need for a always be considered for persons under the age of 15 who commit crimes, in particular the very youngest. In the case of a social service sanction, it should be possible for the measure to be included in the youth contract or to be a part of LVU care. We recommend that the social services in the statement pursuant to section 11, LUL, shall give an account of their deliberations in this respect. The intended rucksack is to adopt a holistic approach to the young person and his or her situation. Family, school, friends and the immediate environment are of key importance for the young person. It is therefore close at hand to draw parallels between the rucksack and the use of structured non-custodial care programmes. We can see that programmes of this kind can in many cases be a suitable measure for children and young people who commit crimes. We have been instructed to consider, among other things, the position in the judicial process that mediation should have. In this connection, we have concluded that there are no convincing reasons to introduce mediation as a sanction in the system of punishment. Neither are there solid reasons to introduce a system with conditional formal cautions. There are not either sufficient reasons to recommend that the circumstance that the young person takes part in mediation is to be a separate ground for a caution. The Commission has also rejected the idea of amending the rules in section 29 of the Penal Code with a view to getting the courts to take greater consideration to the fact that mediation has taken place when sentencing and deciding on a sanction. However, we do consider that different possibilities should be made use of to increase the prerequisites for use of mediation. Although there is insufficient knowledge to be able to make any more definite statement on the rehabilitating effect of mediation on young offenders, the experiences of mediation to date must be considered to be good. It is therefore justified to assume that it would be positive if greater use were made of mediation in future. In the light of this, the Commission recommends that it shall be stated in the provision on a formal caution in section 17 of LUL that, when making an assessment of whether such a decision is to be made, special consideration shall be given to the willingness of the young person to participate in mediation pursuant to the Mediation Act. We therefore also recommend that the period of time for a decision in the issue of prosecution be extended in the cases when mediation can come into question. With respect to how mediation should be organised, we have considered it most suitable that it take place within the municipal social services. In our view, there are not at present sufficient reasons to justify making mediation mandatory for municipalities. We recommend that be the co-ordinating national body in this area and that the Board be instructed to be responsible for providing continued support to mediation activities in . Initiatives for young offenders are to be viewed in a holistic perspective where the social services have overall responsibility for long-term planning. The social services thus retain the main responsibility for the person sentenced for crimes and enforce the sanction of closed institutional juvenile care under the Enforcement of Custodial Youth Care Act (1998:603) (LSU). However, the evaluation of the sanction shows that the statutory collaboration between (SiS) and the social services has often not worked well. Among other things, there has been a lack of continuity and a long-term approach in assessments, planning and measures for those sentenced under LSU. The Commission considers that the deficiencies noted are a cause for concern. The findings of the Commission under this heading have also given the Commission reason to consider whether co-operation would benefit from different arrangements for enforcement of custodial youth care. The persons sentenced to LSU almost always need some form of continued treatment and support after custodial care. We use the term post-custodial care as an overall term for these measures for those sentenced under LSU It was noted in the evaluation that there were serious deficiencies in the work of the social services in post-custodial care. Treatment measures were as a rule lacking or ceased soon after discharge. With a view to rectifying these deficiencies, the Commission proposes that post-custodial care be made part of the enforcement of custodial youth care and that SiS be made responsible for post-custodial care arrangements. SiSs responsibility during post-custodial care is to be limited to the treatment measures that are justified due to the young persons criminality. SiSs work in enforcement is thus always to be related to the criminal conduct. The recommendation for a new form of enforcement means that the court determines the tariff culpability of the crime in the ordinary way, i.e. the culpability measured in the number of months/years of custodial youth care, and sentences the young person to this sanction. If the time the sentenced person has to serve is at least four months – after taking into consideration the provisions on crediting of periods of deprivation of and combination with other sentences – six months post-custodial care will be included in enforcement as a main rule. In these cases, the period of custodial care is to be reduced by two months. Since there are situations when it is not appropriate to provide the young person with post-custodial care, SiS shall be able to make exceptions from the rule on post-custodial care. If the young persons conduct is not satisfactory during the period of post- custodial care, it shall be possible for SiS to apply sanctions against him that entail either a caution or a return to custody. The measures in connection with preparation for release from custody and after a period in custody are to be planned at an early stage of enforcement of the LSU sentence. The plan is to be confirmed by SiS in consultation with the social services. Otherwise, we have found that the person sentenced to custodial youth care and who is not in custody shall be able to obtain a respite with enforcement if there are exceptional reasons for so doing. The Commission also recommends that it be made possible for the sentenced person to obtain a respite with enforcement if he or she has applied for to the Government. We have further found that the possibility for enforcing custodial youth care when detained should be expanded. We therefore propose that a person sentenced to custodial youth care who is detained for new crimes before enforcement of the sentence has begun, shall be able to be detained and undergo custodial youth care at the same time. According to the existing arrangements, enforcement of a sentence of custodial youth care always starts at a locked facility. We consider that an exception from this requirement should be introduced. The evaluation showed that there are serious deficiencies in the drawing up of treatment plans for those in custodial care. The requirement that the treatment plan is to be drawn up by SiS in consultation with the social services is not always complied with either. We draw attention to the importance of compliance with the existing rules in this area. The Commission considers that the deficiencies noted in the evaluation with respect to the mental health of young people sentenced under LSU are serious. It is important that these deficiencies are rectified as soon as possible. However, many concrete proposals have been made over the years without these having led to any legislative measures or other decisions with a direct practical importance for the ability to rectify the deficiencies that have existed for a long time. We have therefore considered it less meaningful to make additional proposals in this area. We want instead to emphasise the importance of the measures already taken, in combination with the recommendations made previously and those which will be placed on the participants in question, leading to the persons sentenced under LSU having their needs for trained psychiatric help met. The sanction combination probation and prison Our task also included considering whether there is reason to retain the sanction combination of probation and prison for young offenders. We consider that there are not sufficient reasons to replace the sanction combination probation and prison for young offenders by any other sanction combination. We have not otherwise found sufficient reasons to abolish this sanction combination. It should accordingly continue to be possible in exceptional cases to sentence offenders aged between 15 and 17 to probation in combination with prison. Detention and other supervision of young persons sentenced for offences It is not possible to refrain from use of personal coercive measures against young people. However, it is important to find forms for such supervision that entail a reasonable balance to be struck between the contradictory interests involved. The Commission considers that the existing rules on when young people may be detained are designed in such a way as to entail that a reasonable balance is struck between the interests concerned. With respect to the alternatives to detention in the Code of Judicial Procedure (RB), it is in our view difficult to see what measures that could conceivably increase the applicability of supervision pursuant to Chapter 24, section 4, RB within its existing framework. However, we recommend that Chapter 25, section 1, RB, be amended to clarify that the section contains three separate cases where a prohibition and obligation to report can replace detention. To increase the ability to use this section, the obligation to report could also be complied with at designated social services facilities. The Commission further recommends that clarification be made in Chapter 25, section 2, RB to draw attention to the ability of the court to combine a decision on an obligation to report with necessary conditions. Immediate coercive taking into custody under LVU can also be an alternative to detention of the young person. However, we have found that the current provisions on coercive taking into custody in LVU are sufficiently far-reaching, provided that the social services make use of the opportunities offered by the system of rules. There is thus no reason to increase the ability to take into custody. However, should in its regulations and general guidelines better clarify than at present the responsibility of the social welfare committee in this respect. We recommend that the prosecutor shall notify the social welfare committee when a person under the age of 21 is detained. is to be obliged to make a written statement to the prosecutor within a set period on its position with respect to the measures in the social services that can be applied as an alternative to detention. An arrangement of this kind should be able to counteract young people being detained despite there being prerequisites for alternative measures within the social services or that the young person after the detention decision has to remain in detention for a longer period than necessary. To shorten the period of detention for young offenders who are in remand prison pending sentence to custodial youth care attaining legal force, it is proposed that the court shall be able to order that the judgment be enforced immediately. The Commission has considered whether a new alternative to detention should be introduced. An alternative form of supervision could be a new arrangement for deprivation of of young people with their being placed at a special home for young persons. However, we have found that the disadvantages attached to making an arrangement of this kind are so substantial, in relation to the possible benefits, that no recommendation should be made to this effect. Another alternative form of supervision to detention could be for the young person to be confined to their home with intensive supervision in the form of electronic supervision (IÖV), so-called tagging. We have, however, considered for various reasons that it is not suitable to introduce such an arrangement. The Commission has also considered the possibility of placing detained young people at special homes for young people to avoid their being placed in a general remand prison. However, in an overall assessment, the disadvantages outweigh the advantages that placement at SiS could entail. The Commission has therefore not found reason to make any recommendations to this effect. It is thus not possible to do without young detained persons being placed in general remand prisons. However, we consider that there are good possibilities to improve conditions for young people in remand prisons. The work of the Prison and with young detainees should continue and be developed. The special responsibility of agencies for the age group is to be shown by legislation on treatment of those detained in remand prisons. It shall be stated there that conditions for young people under the age of 18 are to be adapted to the special needs of young people and that the young persons are to be the subject of special measures during their stay in remand prison with a view to easing their situation. Crediting of time for deprivation of for crimes We recommend that it be made possible for a person sentenced to imprisonment or custodial youth care to be credited in certain cases with the time that he has been taken into custody under LVU. A requirement for this is that the deprivation of took place due to suspected crime that has then been tried through the judgment. It shall further be required for crediting that the deprivation of has been of such a kind as to be equivalent to detention or arrest. The question of whether crediting is to take place should be considered by the court when the case is being decided. It should be stipulated in a new provision in Chapter 33 of the Penal Code that the court may credit time for the deprivation of in question to the extent that it is equitable taking into consideration the circumstances. Co-ordination of expertise and method development and spreading of general information and knowledge Expertise on care and treatment of young people with behavioural problems is spread among many different actors. A lot of funds and resources are invested in research and development in many quarters. It is of the greatest importance that the measures taken for children and young people with asocial behaviour are based on science or confirmed experience. It is therefore important to find an arrangement that leads to the results of research and the investments made being disseminated so that they come to the knowledge of those who can apply these results in their activities, for instance, the social services in the municipalities. There is a need for an actor with a holistic vision and with responsibility for monitoring the research carried out and ongoing activity. This actor should also be able to spread such information and knowledge. Since this concerns measures for children and young people, would seem, in the view of the Commission, to be the natural choice for this task. The Commission thus recommends that be made responsible for co-ordinating the development of expertise and method and for spreading general information and knowledge on juvenile crime and public intervention to the social services. Damages due to crime According to the evaluation, a survey showed that young people sentenced to custodial youth care were also ordered to pay damages to a great extent. The evaluation referred to also stated that joint and several liability for payment was associated with a number of negative effects. The financial demands were perceived by the young people as impossible to overview and unfair. The demands contribute to making more difficult re-adaptation to a normal life without black work and crime. Moreover, joint damages link together young people in a destructive way. Although this issue was not mentioned in the terms of reference of the Commission, we have, in the light of this, taken the view that there is reason to consider whether the present arrangements for joint and several liability for young offenders are designed in an appropriate way. The main rule is that the person is responsible for damage shall compensate for it, i.e. pay full compensation for it. Certain exceptions have been made, however, in the Tort Liability Act (1972:207). The amount of damages can in certain cases be reduced after an assessment of equitability, for instance, if the person liable to pay damages is under the age of 18 (Chapter 2, section 4). We consider that the area of application for the adjustment rule in Chapter 2, section 4, of the Tort Liability Act should be expanded to include the age group from 18 to 20. However, we refrain from recommending generally increased opportunities for adjustment of liability to damages resting on young offenders. If several persons are liable for damages for the same damage, they are jointly and severally liable under Chapter 6, section 4. The main rule on joint and several liability does not apply, however, when the liability for damages is limited for any of those involved.