Facts
The Juvenile Prosecutor’s Office of Basel-Stadt conducted a criminal investigation against a juvenile defendant (X.), who was just under 15 years old at the time of the alleged offences (July–October 2010). He was accused of serious criminal offences including sexual acts with children, sexual coercion, rape, desecration and bodily harm. On 12 April 2011, the Juvenile Prosecutor’s Office granted official defence until the second questioning of the alleged victim. On 3 May 2011, it revoked this approval. The juvenile defendant filed an appeal with the Appellate Court of the Canton of Basel-Stadt, which, on 28 June 2011, overturned the decision of the Juvenile Prosecutor’s Office and ordered it to grant the defendant official defence for the entire criminal proceedings, as long as the allegations of rape or sexual coercion were maintained.
On 12 September 2011, the Juvenile Prosecutor’s Office lodged an appeal with the Federal Supreme Court against this decision. It sought the annulment of the contested decision and confirmation of its order of 3 May 2011. The Federal Supreme Court dismissed the appeal and thereby confirmed the decision of the lower court.
Considerations
The Federal Supreme Court first examined the statutory bases for official defence in juvenile criminal proceedings. Pursuant to Art. 24 JCrimPC, an official defence must be granted to a juvenile defendant if certain conditions are met, including in particular the risk of deprivation of liberty of more than one month or the inability to adequately safeguard their own procedural interests. Art. 25 para. 1 lit. c JCrimPC provides that the competent authority shall order official defence if the juvenile defendant and their legal representative do not have the necessary means to retain private defence and one of the conditions under Art. 24 JCrimPC is met.
In the present case, the juvenile defendant’s financial need was undisputed. The lower court and the Juvenile Prosecutor’s Office agreed that the conditions for necessary defence under Art. 24 lit. b JCrimPC were met. This provision stipulates that defence must be granted if the juvenile defendant and their legal representative cannot adequately safeguard their own procedural interests. This may be due to personal reasons such as insufficient language skills or conflicts of interest, or to factual reasons such as the particular difficulty or complexity of the proceedings. Furthermore, the severity of the allegations must be appropriately taken into account.
The Federal Supreme Court emphasised that in juvenile criminal proceedings, a generous standard should generally be applied to the granting of official defence. In the specific case, the juvenile defendant’s age, the…