Home Law International Handbook of Juvenile Justice
Juveniles on Trial
Once the Prosecutor decides not to dismiss the case, the process continues and the formal adjudication process begins. The next phase is the trial, where the ‘hearing’ takes place informally. The judge must hear everyone including the juvenile, the parents, the prosecutor, the TT, and the defense lawyer and make a decision. In order to make this decision in the juvenile’s best interest, the judge must bear in mind the seriousness of the offense, the juvenile’s family, and his/her social and educational history.
Indeed, the juvenile’s best interest is the underlying premise of the Juvenile Justice System, addressed by the JCA, which is one of the fundamental rights according to the ChRC: in all legal actions concerning those under the age of 18, the ‘best interests of the child’ shall be a primary consideration (article 3.1). However, sometimes, the age, the kind of crime committed, its seriousness, and recidivism must be taken into consideration, since these are the criteria set out by the legislator to predetermine the court action, which in some cases affects the length of the sentence. Table 20.1 clarifies the rules to be applied, which have been progressively reinforced in the successive amendments to the JCA since it came into effect.
Table 20.1. Special rules for the application of sentences for juvenile offenders
aWhen the case is extremely serious, the judge should impose a sentence of detention of 1-6 years and 5 years’ probation (the sentence may not be modified until after the first year has been served)
bWhen the case is extremely serious, the judge should impose a sentence of detention of 1-6 years and 5 years’ probation (the sentence may not be modified until after the first year has been served)
cIn the case of connected or continuing offenses and at least one is of those included in this clause, the Judge may extend the period of custody up to 5 years in the case of minors of 14 and 15 and up to 10 years when the offender is 16 or 17 years of age
As laid down in article 10 of the JCA, if the offenses are serious crimes or are less serious but involving violence or intimidation against persons or causing serious risk to life or physical integrity or are crimes committed in groups or in which the juvenile is proved to have belonged to or acted as part of a gang, criminal organization or association, the judge may extend the sentence by up to 3 years in the case of minors of 15 or 16, and by up to 6 years if the offender is 16 or 17. Furthermore, in the case of the older juveniles, the judge must impose a sentence of custody of between 1 and 6 years and 5 years’ probation, without the possibility of the sentence being modified or substituted until after the first year of custody. It must be pointed out that any case of reoffending will be considered an extremely serious offense by the legislator without any need to specify exactly what is understood by reoffending.
Furthermore, if the juvenile has committed a serious crime such as murder, homicide, rape, or acts of terrorism, the judge must impose a sentence of 1-5 years’ custody and a further period of up to 3 years’ probation, if appropriate, if the offender is under 14 or 15 years and 1-8 years’ custody and 5 years’ probation if the juvenile is 16 or 17. In this case, the sentence may not be modified, suspended, or substituted until at least half of the sentence has been served.
It is important to note that, according to article 40, the judge may suspend the sentence if it is less than 2 years and always on the condition that the juvenile promises to commit no further offenses, to reintegrate into society, to carry out the tasks set out in the probation plan, to perform a series of socioeducational activities, and/or the parents or guardians have given their commitment to participate.
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