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The Country’s Stance Toward the UN Committee on the Rights of the Child
The legislation regulating juvenile justice adapts to the proposals and principles of the Convention on the Rights of the Child (CRCh), especially as per its original version. The amendments to the JCA of 2000 (2002 and 2006, mainly) have introduced stricter measures for older juveniles and those who commit more serious crimes or repeat offenders, ignoring the rationale of juvenile justice as a specialized jurisdiction: that juveniles lack the maturity of adults (Bernuz 2005). Specifically, the JCA has assimilated the principles of diversion, deinstitutionalization, and the respect for the rights and guarantees of individuals in criminal proceedings on behalf of the institutions intervening with juveniles. Nevertheless, the Committee on the Rights of the Child considers it essential to link these principles with the rights also considered as fundamental by the Convention. Specifically, with the right to nondiscrimination (art. 2), the best interest of the child (art. 3), the right to life and development (art. 6), and the right to be heard (art. 12).
Of these rights, the most constant references in the legislation and practice of juvenile justice in Spain are those to the best interest of the child. Despite the vagueness of the term, this principle has a direct relationship with the notion that juveniles have limited culpability, as a result of their incomplete physical and psychological development and their special emotional and educational needs. To this end, the Committee on the Rights of the Child considers, broadly speaking, that the best interest of the child shall be applied, when the objectives of rehabilitation and restorative justice take precedence over those of repression and punishment more typical of adult justice. This is taken into account by Spanish legislators when juveniles commit minor or less serious crimes, but is questioned when juveniles commit very serious crimes. In this case, the best interest of the child must be reconciled with the functions of the general prevention of punishment more typical of adult justice.
In accordance with the CRCh, the JCA accepts that juvenile justice is a variation of criminal justice which must recognize and realize the rights and guarantees of criminal proceedings. These are formal and constitutional issues which are more easily assimilated into the legislation and also by judicial operators. This may be because they believe the security of a system of legal responsibility is more favorable to juveniles than a tutelary, protectionist system and because respect for the rights and guarantees forms part of their professional training and is in line with traditional adult justice. For example, the importance of the presumption of innocence is clearly upheld in the process of accountability of juveniles and in their educational process. It is accepted that an intervention by the legal institutions is only educational and meaningful for juveniles when they have been declared guilty and have accepted and understood their responsibility.
However, the effective implementation of the right to be heard is more complex in the context of juvenile justice. According to the Committee on the Rights of the Child, in order to take a decision in the interest of a juvenile, depending on his or her maturity, the juvenile’s own opinions must be taken into account. This, however, according to the Committee of Ministers of the Council of Europe, does not mean that the final decision necessarily coincides with the juvenile’s wishes (2011, section 28). This difficulty in the implementation of the right to be heard is perhaps due to the continuing existence of the idea that the capacity to decide lies with the State or because the consequences of the Convention stating that the child must be heard as a subject of law, with the right to participate in the decisions which affect him or her is still to be assimilated, even when these decisions occur within the framework of juvenile justice (Bernuz 2015).
It can be said that 25 years after signing the CRCh, the principles and philosophy of the Convention have gradually filtered through into the Spanish legislation and have also transformed the procedures inherited from previous models. International organizations, mainly the United Nations and the Council of Europe, are aware of the need to improve the processes of implementation and effective realization of the rights. To this end, it is fundamental to continue reflecting on what juveniles understand by rights. In this sense, it is especially important to pay attention to a child’s right to be heard since this is what really involves juveniles in the decisions affecting them, because they are treated as a true subject of law, because when institutions listen we have the impression they are fairer and because, consequently, we tend to obey decisions coming from institutions we consider legitimate. It could be said that juveniles feel more responsible when faced by a system of justice which is interested in them, which listens to them and explains its decisions. It must be stressed that in the legitimation of juvenile justice, it is not only important to assess whether rights are being realized but also how they are being realized (Bernuz 2014).
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