Diversion is an institution established by the Juvenile Justice Code whose purpose is to resolve a juvenile's case through diversion and mediation instead of a court trial. The law precisely defines which juveniles may be eligible for diversion, what preconditions must exist, what guarantees are granted before and after the decision, what measures may be imposed on the juvenile, and what happens if the agreement is not fulfilled. This page explains these rules so that the juvenile, his or her legal representative and the advocate know how to obtain diversion and what to avoid on the way.
Who May Be Diverted and Who Decides
Where a reasoned suspicion exists that a juvenile committed a less grave or a grave crime, the possibility of diversion is considered first of all, and an assessment is made of whether diversion better ensures the juvenile's resocialisation and rehabilitation and the prevention of a new crime. The decision on diversion is taken, in the procedure established by the Code, by the prosecutor — through a reasoned decision not to initiate criminal prosecution or to terminate initiated prosecution. A court may also apply diversion, either on its own initiative when examining the case or when examining a reasoned motion of a party.
In taking the decision, account is taken of the best interests of the juvenile, the nature and gravity of the act committed by him or her, the age of the juvenile, the degree of guilt, the expected sentence, the damage caused by the juvenile, the preventive effect of criminal prosecution, post-offence behaviour, crimes committed by the juvenile in the past, and the individual assessment report. Taken together, these criteria determine whether diversion is a better path for the child than punishment, and their proper substantiation is the foundation of successful diversion.
Preconditions for Diversion
Diversion may be applied only where the following circumstances coincide: sufficient evidence exists for the reasoned suspicion that the juvenile committed a less grave or grave crime; the juvenile has not been previously convicted; the juvenile has not previously been involved in a diversion-mediation programme; the juvenile admits the crime; in the inner conviction of the prosecutor or the court, taking into account the best interests of the juvenile, no public interest exists in initiating or continuing criminal prosecution; and the juvenile and his or her legal representative give written informed consent to diversion.
All of these conditions must exist simultaneously. The absence of any one of them — for instance, a previous diversion or a refusal to admit the crime — excludes diversion, which is why the defence strategy must be built on these conditions from the outset.
Guarantees for the Juvenile During Diversion
Before a decision on diversion is taken, the juvenile, his or her legal representative and the advocate must be given detailed information on the essence of diversion, the procedure for its application, its duration, the possible conditions, and the consequences of non-fulfilment of the diversion measures. The juvenile is explained, orally and in writing, that consent to diversion is voluntary and that he or she has the right to refuse diversion at any stage.
The following guarantee is particularly important: the admission of the crime by the juvenile in the diversion process and the information obtained about it may not be used against the juvenile in court. This means that even if the juvenile refuses diversion, the admission will not harm the child in court proceedings, which greatly simplifies the taking of a deliberated decision by the juvenile and the family.
Diversion Measures and Their Limits
An agreement on diversion or on diversion and mediation may provide for the following measures: a written warning to the juvenile; a restorative justice measure, including involvement in a diversion-mediation programme; full or partial compensation of the damage caused; the transfer of illegally obtained property to the state; the transfer to the state of the instrument of the crime or an object withdrawn from civil circulation; the imposition of an obligation on the juvenile; and the placement of the juvenile in foster care. Several measures may be applied to the juvenile simultaneously, and they are determined on the basis of the individual assessment report.
The law sets clear limits on the measures: a measure must be reasonable and proportionate to the crime committed. It is impermissible to impose on the juvenile an obligation that humiliates his or her dignity and honour, separates the juvenile from the normal educational process and main work, or harms his or her physical or mental health. It is likewise impermissible to apply a diversion measure harsher than the minimum sanction provided by law for the committed act.
Non-Fulfilment of the Agreement and Its Consequences
The fulfilment of diversion measures is supervised by the representative of the institution provided for by the Code. If the juvenile intentionally fails to fulfil the measure, the social worker notifies the prosecutor, who — after hearing the opinions of the juvenile, his or her legal representative and the social worker — cancels or maintains the decision on diversion, changes the diversion measure or extends the duration of the diversion agreement.
Where the decision is cancelled, the prosecutor annuls, by a reasoned decree, the decision not to initiate or to terminate criminal prosecution and initiates or renews prosecution by a new reasoned decree. At the same time, the actions carried out by the juvenile towards the fulfilment of the diversion measure are taken into account at sentencing — the child's effort is not lost and will be assessed positively when the sentence is determined.
Frequently Asked Questions
For which crimes is diversion possible?
Where a reasoned suspicion exists of a less grave or grave crime, provided all other statutory preconditions exist.
Who takes the diversion decision?
The prosecutor, by a reasoned decision; a court may also apply diversion on its own initiative or on a motion of a party.
Is admission of the crime necessary?
Yes — admission of the crime and the written informed consent of the juvenile and his or her legal representative are mandatory preconditions of diversion.
Can the admission be used in court?
No. The admission of the crime and the information obtained in the diversion process may not be used against the juvenile in court.
What happens if the agreement is not fulfilled?
The prosecutor may cancel the decision and initiate prosecution anew; the effort already made is taken into account at sentencing.
How We Help on Legal.ge
The advocates of Legal.ge work on juvenile cases with a strategy oriented towards obtaining diversion: we verify the preconditions, assist in the proper expression of informed consent, participate in negotiating the conditions of the agreement and protect the child's guarantees throughout the process. Contact us for a consultation — we will assess your child's case and prepare a position aimed at resocialisation instead of prosecution.