Legal input for minors
The information below was compiled for the Rhineland Action in the summer 2019 and can
not always be applied 1 to 1 the Lusatia Action in the autumn 2019.
Minors in action
If you are less than 18 years of age, the German legal system considers you a minor. In this text we will often refer to a minor‘s parents, but if your legal guardian is someone other than your parents, the same information holds for them.
Before going to an action
It makes sense to plan ahead: if you want to avoid being brought back to wherever your parents are because police picked you up and considers you unaccompanied, someone else might need to be available to pick you up either at the police station or the facilities of the youth welfare office. Normally, police would want to reunite you with your parents, because legally, it is a parents right to determine their underage child‘s whereabouts. If the police assumes that you are out and about without your parents’ knowledge, they can detain you to bring you to either the youth welfare office or your parents (so called “custodial care”, specified in § 35, section 2, Police Law NRW). Most likely they will try it at your parents’ first. If you carry a permission slip signed by your parents that allows you to participate in the protests, you can avoid being detained by the police. So, in case you are on more or less good terms with your parents, it could be really helpful to your cause to ask them to sign a slip similar to the following. All your legal guardians have to sign!
I hereby allow my child (NAME) to participate in the protests in the Rhenisch Lignite Mining Area from the XX/XX/20XX to the XX/XX/201XX. In case my child is being detained (GERMAN: Ingewahrsamnahme/Freiheitsentzug) I allow for my child to go back or be brought back to the camp.
Authorisation (German: Vollmacht)
I/we hereby authorise
to receive my/our child: Name, address, date of birth from the authorities and take care of the child in case my/our child is being detained or arrested in the time between XX/XX/20XX and XX/XX/20XX.
A good choice for the person authorised to pick you up is someone who is legally an adult and who is not going to be immediately involved in the action themselves. If you don’t know anyone who fits these criteria, you could ask your parents if they would still sign a form even if it did not have the name of a person to be authorised on it yet. Then, you can still find someone whose name you want to put in shortly before the action. You can ask the legal team whether they know people who might be willing to do this. Obviously, this precaution can only be used for minors who do not plan to remain anonymous, or for those who want to remain anonymous but would consider disclosing their personal data at a later point.
Children (13 or younger) and young people (14-18) can only be taken into custody if they are being accused of a crime, or if they are considerably disrupting the operations of e.g. a company (§ 1 section 2 Police custodial law NRW). In any other case (e.g. to enforce a ban from the premises or prevent an imminent threat) they would normally have to be brought into the care of either a legal guardian or the youth welfare office immediately.
But in practice, most of the times police will just take you with them anyway – and then at some point later they will ask whether there are any minors in the room. If you disclose your personal details to the police, they are obliged to call your legal guardian to come and pick you up. It is entirely up to you whether you for example just hand them the phone number or whether you try to get the police to actually call your parents (which they often don’t, even though theoretically, they have to). The right for all detainees to make a phone call also applies to minors – so please call the legal team and tell them where you are. Then the legal team knows that the person your guardians authorised (see above) can go to the police station and pick you up with the help of that permission slip.
If you do not disclose your identity but police still believes you to be a minor, it is very likely that they will bring you to a facility like a youth home – where you legally can’t be locked up! So, as soon as the officers who dropped you of have left, you should be able to just leave on your own and walk off. In practice, the experiences with just leaving these facilities differ: some had no problem and just left, while others found their personal belongings to be locked away or were only able to leave the next morning. From e.g. the youth home or even still the police station, you should try to call the legal team to let them know the address or at least the city of the youth facility, so that they can find out more and pick you up. If you want to be really well prepared you should also carry some cash so that you could try to get back to the camp on your own using public transport.
Whether you want to be read as a minor by the police, or whether you try to act mature and be treated as an adult is a strategic decision you need to take for yourself. It depends on whether you prefer to be in the detention centre together with a lot of other people, or whether you would rather try to take off after being put into a youth home – which, as experience shows, you would often have to do on your own, but the general conditions of your treatment would most likely be better than in the detention centre. If you want support in making that decision, consider talking to both your affinity group and the legal team.
Police might accuse you of committing a crime. In consequence, they might also want to question you. Before an interrogation, they have to inform you that you are allowed to refuse to make a statement (which you should!). But since the police often doesn’t adhere to their own rules you should not rely on getting that information from them. Your parents as your legal guardians have the right to be present if you are being questioned by the police. If you want them to be there, you can demand to talk to them on the phone before being interrogated. People below the age of of 14 years may not be questioned by the police.
In case of more severe allegations or if there is a supposed risk of absconding (people might try to get away), minors may be taken into remand or pretrial detention (called investigative detention or Untersuchungshaft in German Law) to a juvenile detention centre. Children (younger than 14, or, if anonymous, appearing younger than 14) may not be taken into pretrial detention.
After the action
Being summoned by the police
If a minor is summoned to be questioned by the police, the summons will also be send to the minor’s parents. Parents have a right to be present during police interrogations, which is why they will be informed of any such appointments. During court proceedings they also have the right to file motions (§ 67 JGG), so they can have a hand in influencing your strategy. For many people that turns out to be a bit difficult, because many parents tend to cooperate with the police to “solve” everything. In most cases that behaviour is a rather bad idea, since many parents do not have a lot of experience with political court cases. It might be hard, but it makes sense to talk to your parents or guardians about your trial and political motivation. They need to understand why it makes sense to refuse to give a statement, and also what it is that you are trying to achieve with the strategy you chose for your political criminal court case. Don’t let them pressure you to do something you don’t want! If you need help, come talk to us or other political anti-repression structures. If necessary, we will sit down with you and your parents and talk things through.
In criminal court cases, minors (younger than 18 years) and adolescents (18 to 21 years of age) are subject to some specific regulations. If you are between 18 and 21 years of age, the court has to make a decision based on § 105 JGG whether you will be tried as an adult or as a juvenile. In theory, that decision depends on how “mature” the court thinks you are, and whether the alleged crime is considered to be “typically committed by young people”. In practice, people are most often tried according to juvenile criminal law.
Juvenile law has several implications: the trial takes place close to your place of residence, instead of at the court closest to the scene of the alleged crime. Furthermore, a minor’s trial usually is not open to the public. An adolescent’s trial often is open to the public, unless the judge decides to purposefully have the session without any public present. Also, the court has what is called an “educational mission”, meaning that apart from subjecting you to moral sermons, they can also impose more unusual penalties: e.g. writing an essay, doing community service, staying away from certain areas, attending an anti-violence-training etc.. Although minors reach the age of criminal responsibility at 14 and can be sentenced accordingly, they are not fully “legally competent” yet, e.g. they may not enter into contracts on their own. Thus, it is legally your guardians responsibility to hire an attorney. You should try to avoid your parents setting you up with a lawyer who has no experience with political court cases or one who tries to pressure you to distance yourself from your political stance or other political actors involved.
State Legal aid to minors
The department of legal protection of minors (Jugendgerichtshilfe) is another feature the “educational mission” yields: as soon as the documents for a trial against a minor are in the hands of the state prosecution, the department will know about it and try to get in touch with said minor. Their job is to support the court in trying to determine what kind of punishment might be appropriate in your case. Everything the department of legal protection of minors talks to you about, they will report back to the court. You are not obliged to cooperate with them, and in the legal team’s opinion you should indeed try not to talk to them. But even if you do talk to them, you should absolutely not say anything about the alleged crime or about other people who supposedly were involved. Doing so would do nothing but cause harm. More information on the right to refuse a statement and the Jugendgerichtshilfe can be found in the Booklet “Aussageverweigerung” by the Rote Hilfe (Red Help, anti-repression structure). If there is anything you feel insecure about, come talk to the legal team.