international association of youth and family judges and magistrates

INTERNATIONAL ASSOCIATION OF YOUTH AND FAMILY JUDGES AND MAGISTRATES
ASSOCIATION INTERNATIONALE DES MAGISTRATS DE LA JEUNESSE ET DE LA FAMILLE
ASOCIACION INTERNACIONAL DE MAGISTRADOS DE LA JUVENTUD Y DE LA FAMILIA
Editorial Board : Dr Willie McCarney (Ireland), Editor-in-Chief; Judge Oscar D’Amours (Canada); Judge Jacob van der Goes
(Holland); Judge Gabriela Ureta (Chile); Atilio Alvarez (Argentina); Dra. Mónica Vazquez Larsson (Argentina);
Prof. Jean Trépanier (Canada). Secretariat: Judge Corinne Dettmeyer-Vermeulen, Mesdagstraat 63, 2569 XV, Den Haag, Holland
N. 2 Vol. 14
December/décembre/diciembre 2005
THE NEW SPANISH CRIMINAL LAW
FOR MINORS AND JUVENILE DELINQUENTS
Dr. José Luis de la Cuesta
President of the International Association of Penal Law
Director of the Basque Institute of Criminology (San Sebastián, Spain)
Important changes in the justice system concerning the treatment of minors and juvenile offenders
have taken place in Spain in the final decade of the last century (de la Cuesta, 1999, 101 ff.).
Abolition of the tutelary system (1991-1992)
Prosecutor and the Judge about the psychological, pedagogical and family situation of the
minor and his background, in order to make it
easier to take more relevant decisions concerning the minor’s education and social reintegration.
The previous tutelary legislation (from 1948)
was declared unconstitutional (by STC 14
February 1991) and Organic Act 4/1992 provisionally set up a hybrid model: tutelary / penal
/ social.
As regards sanctions, new measures, not in the
least imaginative (Manzana Laguardia, 1992,
2543) or novel (López Caballero, 1994, 548),
took the form of educative interventions lasting up to a maximum of two years. The principle of flexibility in choosing, deciding and
applying measures and reserving internment as
a last resort were the main characteristics of
the Act concerning this matter.
This model –applicable to delinquents between 12 and 16 years of age – was first and
foremost based on the principle of concern for
the minor (Palacio Sánchez Izquierdo, 2000),
considered to be the criterion governing intervention and which essentially boiled down to
the minor’s education and social reintegration
needs; not punishment or repression.
Approval of a new Penal Code (1995)
Consequently, the new penal process opened
the way to the implantation of different means
of distraction in the Anglo-Saxon line of diversion, making it possible to close proceedings without the imposition of measures, in
view of certain circumstances: the crime’s severity, the minor’s circumstances and characteristics, the absence of violence or intimidation or the minor’s efforts to make amends
with the victim. It also envisaged referring minors who had committed non-serious acts
(which did not involve violence or intimidation) to the social services, either directly or
with a warning.
Moreover, the approval of a new Penal Code
in 1995 in Spain had a decisive influence on
the development of the new Juvenile Criminal
Law.
In fact, the new Penal Code raised the initial
age limit for the application of its provisions
to 18 and referred the prosecution of minors of
that age to the Act regulating the penal liability of minors, thus maintaining the system introduced in 1992 temporarily in force.
Organic Act 4/1992 also introduced technical
teams, insistently requested by the authors
(Beristain, 1995, XIV), formed by a psychologist, a social assistant and an educator. The
“overriding role” (Urra Portillo, 1995, 8) of the
team was to issue a report for the Public
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December/décembre/diciembre 2005
Establishment of a new penal system of penal responsibility for minors and juvenile
delinquents (2000)
As an exception to the rule, youngsters over
18 and under 21 years of age might also be
tried by means of juvenile jurisdiction (art. 4),
providing that the crime was not serious and
did not involve violence or intimidation towards people or jeopardize human life or
physical integrity, that the subject has not been
found guilty of committing criminal acts by
binding judicial decision since reaching the
age of 18 and that their circumstances and degree of maturity recommend following this
procedure, especially if it is suggested by the
technical team in its report. However, this possibility has still not come into force and it is
temporarily suspended (until 2007).
The new Act regulating the penal liability of
minors (Organic Act 5/2000) was promulgated
in January 2000, and came into force one year
after its publication in the State Official Gazette (Boletín Oficial del Estado), that took
place on 13th January 2000.
Although the Act adopts the majority of
changes introduced in 1992, an overriding
transformation in the treatment of minors’ and
juvenile delinquency has undoubtedly taken
place1.
3. The minors and juvenile process is fully approved with regard to all matters concerning
guarantees of the presumption of innocence
and of the rights of defence, which leaves interesting possibilities open for exercising the
“regulated” opportunity (Bueno Arús, 1997,
164) in proceedings. The Public Prosecutor’s
participation is intense both in the investigation of facts and in the institution of proceedings. He must also ensure that juvenile rights
are respected and watch over minors’ interests
(art. 6). The Public Prosecutor can not take
decisions restricting the fundamental rights of
minors; this is the exclusive competence of the
Juvenile Judge at the Public Prosecutor’s request and by justified ruling (art.23-3).
1. The Act clearly refers to the minor’s “penal” responsibility: a penal responsibility in
the formal sense, that is governed by parameters similar to the those for adult liability, but
is different from the latter with regard to its
consequences, as it must lead to a nonpunitive reaction, which is materially educative.
2. Penal responsibility can be demanded for
people aged between 14 and 18 years, (art. 1).
The Act distinguishes between minors (14-18
years) and young people (over 18 years of
age). Amongst minors, a distinction is also
made between those who are 14-16 years old
and those over 16 years of age, who may be
subjected to longer-lasting internment measures (even for up to 8-10 years, followed by
probation, in the case of very serious crimes or
terrorist acts, respectively). Reaching adult age
does not, however, put a stop to execution of
the measure, which is pursued until proposed
objectives are reached (art. 15). From the age
of 23, youngsters are referred to one of the
centres mentioned in the General Penitentiary
Act (Ley Orgánica General Penitenciaria).
4. The Act includes a whole list of measures
(art. 7)2 and regulates their application and
execution, based on the legality principle (art.
43) and under the control of the Juvenile
Judge. When imposing a measure, the facts
and their legal qualification must be taken into
account, but the minor’s age, family and social
2 Internment in a closed centre, in a semi-open centre, in an
open centre; therapeutic internment; outpatient treatment;
attendance at a Day centre; weekend stays; probation with
intensive supervision; simple probation; living with a family
or educative group; community services; carrying out socioeducative tasks; warning; deprival of motorcycle or motor
vehicle driving licence, of the right to obtain them, or of administrative permits for hunting or fishing or the use of any
type of weapon; absolute disqualification (this last measure,
introduced by the reform brought about by Act 7/2000, of 22
December, concerns terrorism)
1 In summer 2004 was approved the administrative regulation
necessary to assure the adequate application of the Act (see
Royal Decree 1774/2004, of 30th July; published by the Official Journal –Boletín Oficial del Estado, 209- on 20th August
2004).
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December/décembre/diciembre 2005
circumstances, personality and interest are
more important aspects for consideration (art.
7.3). The execution of measures is the competence of Autonomous Communities and the
proximity principle applies: the minor must be
sent to the most suitable centre near his home,
unless agreed otherwise by the Juvenile Judge
in the interest of the minor.
additional absolute disqualification (four to
fifteen years).
5. As occurred with the previous legislation,
Organic Act 5/2000 regulating the penal responsibility of minors also excluded “the actions by private people” (art. 25) and guaranteed the “monopoly of penal action” by the
Prosecution Service. Victims could denounce,
but it was the prosecutor’s task to accuse. This
exclusion of the victim from the legal processing of the minor was criticized (Landrove
Díaz, 1988, 293; Ventura Faci & Peláez Pérez,
2000, 124), although in exceptional circumstances the victim was allowed to participate
during the instruction and also in the hearing
regarding certain cases but in a limited way.
Internment is divided into two phases: internment in the centre and probation (art. 7.2). Interment in a closed centre is only applied to
intentional crimes with violence or intimidation or serious risk to human life or physical
integrity (art. 9.2ª).
The maximum duration of measures for criminal acts is two years, 100 hours, in case of
community service, and 8 for the weekend
stays (art. 9.3ª). Those over 16 years of age
may be subjected to measures lasting up to 5
years, depending on the violence of the acts,
the threat or serious risk to human life or
physical integrity and whether the individual
has educative needs that justify extending the
measure3 In extremely serious cases (and repeated offences are always considered to be
extremely serious) the judge may impose a
measure of internment in a closed centre for
one to five years and, then, probation for another five years; in these cases, modification
or suppression of the measure can not be pronounced until after the first year of effective
execution of the measure of internment (art.
9.5ª).
Organic Act 15/2003 has put an end to this
exclusion of the victim and has modified Article 25. This one allows the victim’s intervention as an actor in the penal process for minors.
The exclusion of victims from the penal process has never affected their involvement in the
process to establish civil liability. The civil
process is examined in a ‘separate file’ (Article 61-64). Organic Act 5/2000 established
indeed a new procedure, before the Judge of
Minors but independent from the penal action
and also regulated the liability of parents and
legal guardians to pay victims compensation
for damages caused by the minor’s behavior.
6. There are, finally, two legally approved possibilities for avoiding trial against a minor:
Despite the above, for very serious crimes
(homicide, murder, rape and qualified sexual
assaults, terrorism and, in general, crimes punished by the Penal Code with penalties of over
fifteen years’ imprisonment), the duration of
interment is longer and may reach up to four
years (five, for terrorist acts) for those under
16 years of age, and eight years (ten, for terrorist acts) for those over 16 years of age (Organic Act 7/2000, of 22 December), followed
by probation and in cases of terrorism by an
-
abstention from starting proceedings on
the part of the Prosecution Service for
those acts which constitute misdemeanours or less serious crimes4, not involving
violence or intimidation and whenever the
minor has not committed similar acts in
the past; and
4 In Spanish law, less serious crimes are generally those punished with less serious penalties; in general, in the case of
imprisonment, those lasting three months to five years (art.
33.3, a) PC).
3 In these circumstances, community service may reach up to
200 hours and weekend stays up to 16 weekends (art. 9.4ª).
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December/décembre/diciembre 2005
acts and the absence of any of the circumstances of exemption or extinction of the
criminal responsibility envisaged by the Penal
Code for adults. Thus there are already enough
reasons for affirming that in Spanish Law the
age limit for penal imputability (“irrefutable
presumption of irresponsibility”) (Sánchez
García de Paz, 2000, 706) has been nowadays
fixed at 14 years of age (art. 3 Organic Act
5/2000) and that, between 14 and 18 years of
age, penal imputability may occur.
dismissal because of reconciliation or
reparation (or a promise of reparation) between the minor and the victim (Article
19). According to Art. 19.2 of the Act
“reconciliation has occurred when the minor recognises the harm caused and
apologises to the victim and the latter accepts his apologies”; on the other hand,
reparation is legally identified to “the undertaking assumed by the minor with the
victim to perform certain deeds in the interest of the latter or the community and
their effective completion”. In the event
of non-compliance with the reparation or
educative activity, case proceedings continue (art. 19.5).
The act makes an important distinction between two age brackets (14-15; 16-17); but the
difference of treatment is sometimes too great.
With regard to those over 18 years of age, the
best solution would be to refer them to the
adult magistrate, authorising the latter to apply
minors’ and juvenile legislation for matters
concerning measures and possibilities of
avoiding or suspending proceedings.
7. Brief comment
Generally, there has been a need and demand
for the Act for a long time. The text is positive
because of its integral nature: it regulates all
aspects of intervention regarding juvenile delinquents (14-18, exceptionally, 21), not only
proceedings and measures, but also the principles to be applied, the execution of sanctions
and civil liability.
Proceedings are too similar to adult proceedings, even though there are large differences.
In principle, possibilities open to diversion
should be considered to be sufficient. The
Public Prosecutor still has to perform an excessively wide range of functions and faculties. The regulation of preventive measures is
too restrictive and the period of precautionary
internment can be, in practice, too long. Conferring the prosecution of minors under the
age of 18 accused of terrorist acts to the National Count of Justice (Audiencia Nacional)
(brought in by Organic Act 7/2000) breaks the
proximity principle and merely copies the system applied to adults. With regard to the technical team’s participation, greater emphasis
should have been placed on communication
between the technical team and the Juvenile
Judge.
Many points are worth commenting on. Let’s
just briefly say that despite the great effort to
make the educative model compatible with the
sanctioning model and the guaranteeing
model, looking to make solutions more flexible and to favour non-intervention... we are
faced with outlooks and ideologies which are
not always compatible.
Moreover, it is based on the fundamental principle of greater concern for the minor; this
continues to be, however, an ambiguous concept –concerning the minor’s personal development, his educative needs, his social reintegration -, which has not been sufficiently developed content-wise.
In view of their regulation measures should be
considered as genuine juvenile penalties
(Cerezo Mir, 2000, 106; García Pérez, 2000,
686; Etxebarria Zarrabeitia, 2001, 32; against
Feijoo Sánchez, 2001, 27 ff.), in other words,
“punitive sanctions” (Sánchez García de Paz,
2000, 719). There is a broad list of measures,
but there is also a lack of more imaginative
According to Article 19 of the new 1995 Penal
Code (Cuello Contreras, 2001, 49), the new
system clearly refers to the penal responsibility
of minors; this is upheld (Article 5 Organic
Act 5/2000) in the commission of punishable
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December/décembre/diciembre 2005
7/2000”. In Revista Jurídica Universidad Autónoma de
Madrid, 4, 9 ff.
García Pérez O. (2000), “La evolución del sistema de justicia
penal juvenil. La Ley de Responsabilidad Penal del Menor de 2000 a la luz de las directrices internacionales”. In
Actualidad Penal, 32, 682 ff.
Gómez Rivero, M.C. (2001), “Algunos aspectos de la Ley
Orgánica 5/2000, de 12 de enero, reguladora de la responsabilidad penal del menor”. In Actualidad Penal, 10, 163
ff.
Lamo Rubio, J. (1999) “La víctima en el actual proceso de
menores: presencias y ausencias”. In La Ley, núm. 4897,
1 ff.
Landrove Díaz, G. (1998), La moderna victimología, Valencia.
Landrove Díaz, G. (2001), Derecho Penal de Menores, Valencia.
López Caballero, J.C. (1994), “La Legislación reformadora de
menores en España u Brasil: un análisis comparativo”. In
Revista de Derecho Penal y Criminología, 4, 491 ff.
Manzana Laguardia, M.P. (1992), “Notas acerca del Proyecto
de Ley sobre Reforma urgente del procedimiento de Menores”. In Revista General de Derecho, 571, 2543 ff.
Palacio Sánchez Izquierdo, J.R. (2000) “El principio del superior interés del menor”. In Surgam, 466-467, 55 ff.
Sánchez García de Paz, I. (2000) “La nueva ley reguladora de
la responsabilidad penal del menor”. In Actualidad Penal,
33, 699 ff.
Urra Portillo, J. (1995), Menores, la transformación de la
realidad, Ley Orgánica 4/1992, Madrid.
Ventura Faci, R. & Peláez Pérez, V. (2000), Ley Orgánica
5/2000 de 12 de enero reguladora de la responsabilidad penal de los menores. Comentarios y jurisprudencia, Madrid.
solutions that could perhaps be put into practice through socio-educative programmes. Finally, the duration of interventions anticipated
for extremely serious cases is generally considered as excessive.
REFERENCES
Beristain, A. (1995), “Prólogo”. In Urra Portillo, J. (1995),
Menores, la transformación de la realidad, Ley Orgánica
4/1992, Madrid.
Bueno Arús, F: (1997), “El Anteproyecto de Ley Orgánica
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Cerezo Mir, J. (2000), Derecho Penal. Parte general. Lecciones, 2ª ed., Madrid.
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Etxebarria Zarrabeitia, X. (2001), “Aspectos sustantivos.
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