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Courts and Juveniles

Once the Police determine that the juvenile has committed an offense, they must inform the juvenile prosecution service. The prosecutor then assesses the case and decides if it is necessary to notify the judge and so set in motion criminal proceedings or whether, in the juvenile’s best interest, it is deemed convenient to give him or her a second chance by dismissing the case and informing him or her of the consequences of committing another offense.

The actions of judges and public prosecutors, in line with the CRCh, are guided by two fundamental principles: decriminalization and deinstitutionalization. There now follows a more detailed explanation of the balance of the application of these two strategies.

Alternatives to Avoid Criminalization

The JCA allows the proceedings to be dismissed in the best interest of the juvenile, thus avoiding a formal response either by the prosecutor at his own office or by the judge immediately after initiating proceedings.

- “Decriminalization” carried out by the Public Prosecutor

The JCA allows the Public Prosecutor to act more freely. The prosecutor may dismiss proceedings without asking the judge, if the offense is minor and committed by a first time offender (art. 18). In this way, the prosecutor carries out an important “filtering” task in the juvenile justice system because first time offenders committing minor offenses will stay out of the system. In any event, the Public Prosecutor refers the case for assessment to the institutions for child protection. If the juvenile is in a social risk situation, the Welfare Services must intervene with an educational measure of protection.

- Decriminalization carried out by the judge

The other method of preventing trial and punishment is requested by the prosecutor but is decided by the judge. In this case it is possible to drop the charges (art. 19) when the juvenile has carried out any kind of activity guided, in some respect, by the principles of “Restorative Justice” (victim-offender conciliation, reparation of the damage, or an educational task). The prosecutor has the power to request the charges be dropped through this alternative, depending on the seriousness and circumstances of the offense when it is a nonserious offense and when the mere promise of the juvenile to repair the damage or injury caused to the victim seems sufficient. If the mediation process is successfully completed, or is not completed due to causes beyond the control of the juvenile, the prosecutor can request that the judge dismiss the case.

The judge may also dismiss proceedings (art. 27.4) when, although the juvenile is not a first time offender, the Technical Team (TT) recommends a second chance in the juvenile’s best interest. This is possible provided that the offense is not serious, when the measures carried out have been sufficient to make the juvenile responsible for his acts, or because of the time elapsed since the acts were committed makes any intervention unnecessary.

432 Esther Fernandez-Molina et al.

Balance of the decriminalizing strategies. Source

Figure 20.6. Balance of the decriminalizing strategies. Source: Spanish Public Prosecution Service.

Figure 20.6 shows the balance over the last 10 years of this line of action. It can be seen that nearly 40 % of the cases are dismissed for one of the reasons previously analyzed. In the early years, it seemed that decriminalization was mainly established by the Prosecutor’s Office and was mainly unconditional. However, currently most cases are closed following conciliation with the victim, repairing of damage caused, or because the ET considers the circumstances of the case makes it advisable to terminate proceedings. The detailed data supplied by the Juvenile Prosecutor’s Office show that the number of conciliations with victims and agreements to repair the damage caused is growing year by year, which indicates a trend toward restorative justice as a way to respond to the more minor offenses reaching the juvenile justice system.

This may be due to a greater specialization of the teams responsible for mediation proceedings, and the conviction that, if the juvenile is guilty, this type of proceedings results in greater accountability for the damage caused and a possible reduction of recidivism. However, it is also clear that the greater number of interventions with juveniles have also played a role.

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