Controversial Kesb practice – young people end up in prison innocently | The lack of space in juvenile psychiatric wards and homes has led to a controversial practice: young people in need of care and therapy are locked up in prisons. What is intended as an emergency solution can last for weeks

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   They have neither parents nor carers who look after them. They often endanger themselves and others; and in many cases they would need therapy. The competent child and adult protection authorities (Kesb) can hardly place such young people in homes, institutions and psychiatric wards, as the lack of space is acute and has become even worse since the outbreak of the coronavirus pandemic.

   __Prison as an emergency solution__

   This situation has led to the authorities in several cantons placing minors in prisons even though they are innocent. These short stays are intended as so-called “time-outs”. The aim is to get those affected off the streets and give them a roof over their heads. The authorities refer to Article 307 of the Civil Code, which states that they must take “appropriate measures” to protect the child if their welfare is at risk.

   In certain cases, when there is no other option, prison is the best possible solution, they say. As research by SRF Investigativ shows, in 2021 and 2022, the authorities in six cantons and the Principality of Liechtenstein assigned minors to the juvenile section of Thun Regional Prison under civil law. This happened in a total of 27 cases over the two years. Young women were significantly more affected because there are even fewer places for them in institutions and homes than for underage men.

   In the last two years, there have also been civil transfers from several cantons to the Waaghof juvenile detention centre in Basel. However, significantly fewer than in Thun. According to a spokeswoman, minors were imprisoned there five times without having committed a criminal offence.

   __Doubt about legality__

   The placement of innocent young people in prison is legally controversial, although the Kesb invokes an article of the law. Martina Caroni, President of the National Commission for the Prevention of Torture – the so-called Anti-Torture Commission – criticises the practice. Young people who have not come into contact with the criminal law have “no business in prison”. Behind bars, juveniles cannot be treated in an age-appropriate manner, Caroni states. “This certainly contradicts the Convention on the Rights of the Child.”

   Last year, the Anti-Torture Commission therefore intervened with Bern’s Director of Security Philippe Müller and wrote to him asking him to refrain from placing juveniles in the Thun regional prison under civil law. The fact that, as is now apparent, other cantons are also practising this further alarmed the Commission, said President Caroni.

   The criticism of the Anti-Torture Commission is echoed by Laura Jost, a children’s lawyer from Bern. She represents young people who have been placed in Thun prison under civil law. This leads to the paradoxical situation that innocent minors are locked up together with young offenders. The young people who have not broken the law receive hardly any therapeutic care and have no schooling.

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   >__Contradictory Zurich practice__

   >The Zurich Department of Corrections – officially called “Corrections and Reintegration” – does not place juveniles in a prison in its own canton under civil law. Other cantons are also unable to place innocent minors in Zurich – for example in the Limmattal prison in Dietikon. Justice Director Jacqueline Fehr, as the cantonal councillor responsible, has a clear stance on this, says a spokesperson: “Civil law cases are not accepted in prisons.”

   >It is all the more surprising that individual child and adult protection authorities (Kesb) from the canton of Zurich assign innocent minors to the juvenile ward of the Thun regional prison, as its occupancy statistics show. In the canton of Zurich, the Kesb are also affiliated to the Department of Justice. Jacqueline Fehr’s spokesperson explains the contradiction in the practice of the prison system and the Kesb with the independence of the Kesb: the legal review of Kesb decisions is the responsibility of the courts, not the Directorate of Justice. The latter is only responsible for the technical supervision of the authority.

   Juvenile offenders are also sometimes released more quickly than those committed under civil law. “Because juvenile criminal law provides more means of persuading institutions to take in minors,” says Jost.