School bullying through the eyes of the law - Part 2

15.5.2024

In the last episode, you learned that the Czech legal system offers several ways to address bullying of a child at school. You already know that it is important to provide evidence and to address the problem immediately to the school and, if necessary, to the Czech School Inspectorate and the Police of the Czech Republic.

To effectively address all the impacts of bullying, we include:

protection of the victim,
punishment and resocialization of the aggressor,
taking corrective and preventive measures at school,
compensation for material and non-material damage caused,

more proceedings need to be initiated. Moreover, these proceedings often run concurrently and have different rules. However, this is not a problem for us. We will assess your specific situation and determine which proceedings to initiate immediately and which to initiate after a longer period of time, when the conclusions of the earlier proceedings or more extensive evidence is available.

In this episode, we will take a closer look at the specifics of criminal proceedings in which children - i.e. people under the age of 18 - appear in various capacities (accused, victim, witness).

It is understandable that every parent of a child who is a victim of bullying wants first of all to ensure the protection of their child and requires the school to live up to its legal obligations to protect their child. That is why the school is always confronted with the problem as a first step and its reaction is followed up.

Not long afterwards, the parents' thoughts turn to punishing the aggressor and possibly seeking compensation for the damage caused, whether material, for example, for the destruction of property, or non-material, most often for the physical and psychological health effects caused to the victim.

On the other hand, it is also important that the process conducted with the aggressor-child is fair and that all his or her rights are consistently protected. This is all the more true when the real trigger for the child's aggression is his or her family and social circumstances, which are not objectively his or her fault. That is also why children and adolescents are always represented by a lawyer.

In general on juvenile court proceedings and in the interests of children under 15 years of age

While in the case of adults, the Criminal Procedure Code is primarily concerned with the interest in the fair punishment of the offender, the main objective of proceedings under the Juvenile Justice Act is to identify the causes of children's unlawful conduct and to respond to them with measures (not necessarily punishment) such that the child does not commit crime in the future and atones for the harm caused.

Proceedings in respect of offenders under the age of 18 are not public. Children always have a defence lawyer or a guardian advocate. The court, the public prosecutor's office and the police work closely with the children's social protection authority (OSPOD), the school and the probation and mediation service.

Offenders (children) under 15 years of age

Children under the age of 15 are not criminally responsible. This means that the court cannot find them guilty of committing crimes that are therefore referred to as otherwise criminal acts.

These offences are dealt with only on the application of the public prosecutor or the court itself initiates proceedings. The phrase 'proceedings against a child under 15 years of age' is not used because the main aim of the proceedings is not to punish but to bring the child offender back to a proper life and to act as a preventive measure.

In the course of proceedings brought in the interests of a child under the age of 15, it is not possible to claim compensation for the harm caused to the victim of bullying, as the victim is not a party to the proceedings.

However, it is still possible to claim compensation for the damage against the perpetrator, and possibly also against the parents and the school, in civil proceedings, which we will discuss in detail in the third part of our series.

An aggressor under the age of 15 is represented throughout the proceedings by a guardian, who can only be a lawyer. The aim is not really to punish, but to discover the causes of the child's unlawful behaviour and to respond to them by taking measures to ensure that they do not lead to the commission of crime again.

Among the measures that the court may impose on a child under 15 years of age are, for example, a warning, placement in a therapeutic, psychological or other educational programme in an educational care centre (forms: outpatient, day care, boarding school for a maximum of 8 weeks), supervision by a probation officer or protective education (placement in a children's home with school or in an educational institution).

Juvenile offenders

Children aged 15 to 18 are considered minors. They are already criminally responsible for their unlawful acts. The offences committed by them are referred to as misdemeanours. In criminal proceedings against a juvenile, the victim (victim of bullying) is a party to the proceedings and the court may impose an obligation on the perpetrator to compensate for the harm caused as part of the judgment.

The penalties imposed on juveniles are referred to as punitive measures. However, they are only used if educational and protective measures aimed at restoring broken social ties and preventing criminal activity would not achieve this objective.

It is certainly not the case that the juvenile cannot be punished for his or her offence. However, punishment is not to be applied if it appears that the juvenile's behaviour has already been corrected as a result of educational measures or protective measures. Moreover, the law allows for the imposition of educational measures on the juvenile already during the proceedings if he agrees to it.

Educational measures may be imposed for a maximum of 3 years and include supervision by a probation officer, a probation programme, educational obligations, educational restrictions and warnings with a warning.

As part of his/her educational obligations, the juvenile may be ordered, inter alia, to live with a parent, to contribute to the assistance of victims of crime, to perform socially useful activities in his/her free time (max. 60 hours), and to compensate the damage caused to the best of his/her ability. Within the framework of educational restrictions, the juvenile may, for example, be prohibited from contact with certain persons, participation in certain cultural, sporting and other social events, or possession of items that could be used to commit a crime.

In any event, it is clear that the imposition of educational measures can already have a significant impact on the juvenile's previous way of life and thus lead to a change in his or her behaviour.

If it is necessary to impose a punitive measure on a juvenile, the court chooses from community service, monetary measure (fine, including conditional form), forfeiture of property, prohibition of activity, prohibition of keeping and breeding animals, expulsion, house arrest, prohibition of entry to sports, cultural and other social events, deprivation of liberty (forms: conditional, conditional with supervision and unconditional).

As regards the penal measures, it may be noted that they are identical in content to the penalties imposed on adult offenders. However, their maximum possible level is reduced by law. For imprisonment, the lower limit of the maximum penalty is 1 year and the upper limit of the maximum penalty is 5 years. Only in cases in which an exceptional penalty may be imposed and if other conditions are met, imprisonment of between 5 and 10 years may be imposed.

Children under 18 as witnesses to bullying

As a parent, you may also find yourself in a situation where your child is fortunately neither the aggressor nor the victim of bullying, but is invited to be interviewed by the police as a witness.

In such a case, the Criminal Procedure Code provides for a special course of questioning if it is not desirable to revive facts that may have an adverse effect on the child's mental and moral development. A representative of the OSPOD shall always be present when the child witness is questioned; the participation of the parents may also be admitted if this can help to ensure proper execution. Questions are asked through the police; it is not possible, for example, for the child to be directly questioned by the defence counsel of the accused juvenile. The questioning should preferably not be repeated. Where appropriate, the report of the child's interview may be read out in court or an audio-visual recording of the interview may be played.

Summary

The legal system of the Czech Republic is ready to adequately punish child aggressors in order to protect victims and the general public. On the other hand, it should be perceived that the main goal of criminal policy towards children is not punishment, but integration back into the mainstream society that does not commit crimes. However, even this objective does not preclude the victim from seeking compensation for harm - although in the case of an aggressor aged under 15 this can only be done in civil proceedings, in the case of aggressors aged between 15 and 18 it is possible to ask the court to decide on their obligation to compensate for harm in criminal proceedings.