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Spain

Esther Fernandez-Molina, Maria Jose Bernuz Beneitez, and Raquel Bartolome-Gutierrez

JUVENILE OFFENDERS, LAWS, AND RIGHTS

The Legal Status of Juveniles

Juvenile Justice in Spain has evolved differently from its equivalents in other European countries. The idiosyncrasy of the Spanish system and the special political situation which dominated Spain during a large part of the twentieth century, produced in this field, as in many others, a peculiar evolution. Although the Juvenile Justice system in Spain emerged at the beginning of the twentieth century, in accordance with the general movement at that moment in the Western world, the impact of the Franco dictatorship (1939-1975) maintained the tutelary approach while things were changing in the rest of the Western world. Nevertheless, the system started to change when Spain became a democratic country, in 1978 (Rechea and Fernandez-Molina 2003).

The juvenile justice process in Spain has evolved considerably in this time as a consequence of both the pressure of legislation and legal practice shaped by the democratic rule of law and Spain’s ratification of the United Nations Convention on the Rights of the Child in 1990. Such evolution is manifest in the legislative transition from the OL 4/1992, Juvenile Court Reform Act of 1992 (JCRA) to the OL 5/2000 Juvenile Criminal Act of 2000 (JCA). The 1992 act was the legal text which first allowed the implementation of the “model of responsibility” in

E. Fernandez-Molina (*) • R. Bartolome-Gutierrez University of Castilla-La Mancha, Albacete, Spain e-mail: This email address is being protected from spam bots, you need Javascript enabled to view it ; This email address is being protected from spam bots, you need Javascript enabled to view it

M.J. Bernuz Beneitez

University of Zaragoza, Zaragoza, Spain

e-mail: This email address is being protected from spam bots, you need Javascript enabled to view it © Springer International Publishing Switzerland 2017

S.H. Decker, N. Marteache (eds.), International Handbook of Juvenile Justice, DOI 10.1007/978-3-319-45090-2_20

Spain, a “dual” framework striving for a balance between education and punishment in juvenile justice, as proposed by the United Nations and in accordance with the new concept of children as subjects of law and progressively responsible for their acts. This legislation also included the culture of rights and guarantees in juvenile justice, replacing the tutelary model, which considered these concepts unnecessary and, instead, relied on the good practice and goodwill of those operating in the field of child intervention. Intervention with unprotected children (children who are in poverty, neglected or abused, or those who are unruly or are at risk of becoming offenders) had previously been the domain of the institutions for the protection of children of each autonomous region. These regions were now to be responsible for adopting protective and educational measures with both children and families. This act was largely criticized since it was provisional and did not change the overall performance of the juvenile justice system in an organized manner. However, such balance was finally achieved due to the efforts of those involved in the implementation of the act, mainly through the work that was done around two courses of action established by this act: “decriminalization” and “deinstitutionalization” (Rechea and Fernandez-Molina 2003).

Finally, a new law, the JCA, was passed in 2000. This act compiles all Juvenile Justice Regulation as a single, complete, and constitutional system. According to this law, justice for juveniles is to be administered by a separate system within the general legal system, with its own specific and specialized court. Jurisdiction of the juvenile court is determined by the offender’s age and his or her conduct. With respect to that conduct, the system is, exclusively, a penal responsibility system. Juvenile justice is concerned only with those who commit acts that are defined as crimes according to adult Criminal Law. With respect to age, the act applies to young people under the age of 18 and older than 14. Art. 4 of the JCA allowed juveniles between 18 and 21 years, under some circumstances, to be judged by the Juvenile Court, so as to benefit from a more lenient system. However, this article was suspended, by a new law, OL 8/2006, and was finally repealed without ever coming into effect.

A juvenile committing a crime before the age of 14 is referred by the Juvenile Court to the Welfare institutions, once their age has been verified. Their situation is then assessed and, if appropriate, educational measures are proposed. While voices are periodically raised in favor of the need to reduce legal minority to the age of 12, it is also true that these voices are usually silenced by the effective response of the institutions for protection. Indeed, most autonomous communities have created teams and specific measures for intervention with minors who commit crimes, even for those who do not exhibit the most traditional problems of unprotected children.

Within this age range (14-18 years old), the JCA established two differentiated groups of young people with regard to the consequences of their responsibility and the measures to be applied to each group; for juveniles aged 14 and 15 measures would not last more than 2 years, while for those aged 16 and 17 any measure, even custody, could last for 5 years. The JCA intends to give more criminal responsibility to the older juveniles, as a kind of transition in order to avoid the abruptness of becoming fully responsible before an adult criminal court for crimes committed after their 18th birthday.

 
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