1. Introduction; 2. Global overview of Spanish delinquency trends; 3. Prevention; 4. Agents of the Spanish Juvenile Justice System; 4.1.The role of the Prosecutor; 4.2. The role of the Police; 4.3. The role of the Social Team; 4.4. The role of the Juvenile Judge; 4.5. The role of the regional government; 4.6. The role of the defence lawyer. 5. Main actions during instruction; 5.1. Provisional measures; 5.2. “Decriminalization” in OL 5/2000; 5.2.1. “Decriminalization” carried out by the Public Prosecutor; 5.2.2. “Decriminalisation” carried out by the Juvenile Judge; 5.3. Implementation of decriminalization in the Spanish juvenile justice system; 6. Sentencing; 6.1. Limitations to the Juvenile’s Best Interest in the Juvenile Judge’s action; 6.1.1. Age; 6.1.2. Circumstances and seriousness of the facts; 6.1.3. Extreme seriousness; 6.1.4. Length of Measures; 6.1.4. Modifications introduced by the OL 7/2000; 7. Sanctions; 7.1. Educative interventions in the Spanish juvenile justice system; 7.2. Types of sanctions; 7.2.1. Custody measures; 7.2.2. Intermediate measures; 7.2.3. Community measures; 7.2.4. Other measures; 7.3. Implementation of educative measures: de-institutionalization.
Juvenile justice in Spain has evolved, as far as its process is concerned. Such evolution has become clear after the legislative transition from the OL (organic law) 4/1992 to the OL (organic law) 5/2000. The 1992 law was the legal text which first allowed the implementation of the “model of responsibility” in our country, a “dual” framework looking for a balance between education and punishment for juvenile justice, as proposed by the United Nations. This law was largely criticized since it was a provisional act, not ruling the overall performance of the juvenile justice system in an organized way. However, such balance was finally achieved thanks to the efforts of those involved in the implementation of the law, mainly through the work that was done around two courses of action established by this law: “de-judicialization” and “de-institutionalization” (Rechea Alberola & Fernández Molina, 2003).
The 2000 law tried a legislative consolidation of this “model of responsibility”, which was being implemented in legal practice. It was a big issue for lawmakers involved in juvenile justice. Yet, such consolidation came late, since it came about at a time when other countries were turning to new views on criminal policy. The international context, within which this new law fell, had more to do with the English No more excuses report than with the UN Beijing Rules or the UN Rights of the Child Convention (ChRC). Following a social outcry which demanded ‘law and order’ policies -criminal policy and juvenile justice in particular-, the law was moving towards tougher action against offenders. Consequently, both during the law-making proceedings and through further amendments, the new law accepted concessions towards social defence, thus abandoning its initial purpose of ‘individual justice’ aimed at defending the juvenile’s best interest and at reaching a balance between education and punishment.
OL 5/2000 is the first law in Spain to compile all Juvenile Justice Regulations as a single and complete system since 1948. To many interested people this reform arrived too late, but the delay can be understood as a consequence of the Spanish political agenda of the moment; the reform of the Penal Code, the so-called “Spanish Criminal Law of Democracy”, arrived in 1995. Nevertheless, the delay may also be an index of the importance that Juvenile Justice has had in Spain: it has always been a peripheral subject matter.
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 specialised 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. The legislators’ intention was to make juveniles responsible for their criminal acts, and at the same time, to protect young and adolescent delinquents against any arbitrariness throughout the decision-making process. Therefore, juvenile justice is concerned only with those who commit acts that are defined as crimes according to adult Criminal Law. It does not include children who are in poverty, neglected or abused, or those who are unruly or are at risk of becoming offenders. These juveniles are the concern of another jurisdiction. This division can also be found in other European countries such as Denmark (Mehlbye and Sommer, 1998), Germany (Weitekamp, Kerner and Herberger, 1998) and Italy (Gatti and Verde, 1998), but other countries have maintained a unique system for protection and reform, among others the Netherlands (Junger-Tas, 1998), Belgium (Walgrave, Berx, Poels and Vettenburg, 1998), France (Gazeau and Pierre, 1998), and Scotland (Asquith, 1998).
And with respect to age, the law applies to young people under the age of 18 and older than age 141. The limits of the previous law were established at 12-16 years of age. To change the lower limit was a very controversial decision which legislators decided to take against the opinion of many juvenile judges and regional social services,2 but everybody agreed to changing the highest limit because Spanish Criminal Law established the age of adulthood at 183. Within this age range, the Juvenile Criminal Law 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 two years, while for those aged 16 and 17 any measure, even custody, could last for five years. The Law intends to give more criminal responsibility to the older young people, as a kind of transition in order to avoid the abruptness of becoming fully responsible before an adult penal court for crimes committed after their eighteenth birthday.
Global overview of Spanish delinquency trends
In Spain, official data about juvenile delinquency can be obtained from three different sources: the Police, the Prosecutor’s Office and the Juvenile Courts. However, it is important to point out that the data obtained from each of these institutions refer to different aspects of the juvenile justice system. While Police statistics4 come from a survey of the number of arrests carried out, the statistics of the Prosecutor’s Office and the Courts consist of the actions carried out annually by each of these institutions; that is, they do not refer to the number of offences reported but the number of actions that each institution takes for each one of these offences. In figure 1 we can clearly see the implications derived from the differences in criteria.
Fig. 1. Number of arrests by the Police, preliminary files initiated by the Prosecutor’s Office and files initiated by Juvenile Courts (1995-2003).
Source: Ministry of Home Affairs, Attorney General Office and the General Council of the Judiciary.
The data regarding Police arrests are the least relevant; this is due to the reasons mentioned before, as well as the fact that in the Spanish system it is possible to file an accusation directly to the Juvenile Prosecutor’s Office, the Duty Magistrate’s Court or the Autonomic5 or Local6 Police.
If we study the data from 2001 we can confirm that the differences in the information provided by the different institutions are very large as shown by the spectacular increase in the number of files initiated in the Prosecutor’s Office. This big difference is mainly the result of the fact that this is precisely this year when the OL 5/2000 came into effect. This means, among other things, a more exact regulation of the different competences of each of the institutions that control crime. This law regulated very precisely, the actions to be taken by the Prosecutor’s Office. So this institution has become the main reference point for the Spanish Juvenile Justice System which has adopted a new way of working and, as a result, a new system for gathering information on its actions. This way, the Prosecutor’s Office must open as a preliminary file every case consigned by the Police, as well as any other actions that must be taken related to these cases (joinders, inhibitions, dismissal, etc.) which implies the opening of a new preliminary file every time.
On the other hand, figure 1 also shows data about the actions by the Juvenile Court. Although there is a higher number of arrests by the Police than by the Prosecutor’s Office, this time, added to the number of preliminary files worked on in this Office related to each report filed and not the case itself must be the number of files that the Prosecutor can file in favour of the youngster at an initial stage of the procedure to avoid the criminalization of juveniles in certain cases. (I don’t understand this sentence at all, J-T)
Despite the numeric differences in magnitude, it is interesting to see that the tendencies in the different institutions coincide, which is, without doubt, very useful information for the verification of the reliability of these data and confirm the value of these sources as instruments of measurement, at least to analyse general tendencies.
If we look at figure 1, we can see that the three curves have an inflexion point in the year 2001, showing a substantial increase in the number of cases: as was mentioned before this is the year the new Law came into effect. This increase is due to the modification of the age margins established by the new Law to enter the system. Data from 1993 to 2000 refer to the number of juveniles between 12 and 16 years of age who had committed a penal infraction, whereas data from 2001 refer to the number of juveniles between 14 and 18 years of age who have committed an infraction. This change has implied an important reform in the system from a quantitative as well as a qualitative point of view since it has meant the ejection of the youngest age group of the population from the system and the incorporation of an older age group that brings about a big change in two ways: on one hand because the latter is a more mature age group from a development point of view, and on the other hand because according to criminological literature, it is an age segment, 16-17 years, that offers the highest number of criminal acts.
We also have to point out that the deep transformation of the system, by means of which these older juveniles have been incorporated, has not taken place automatically, and the transition period between one system and the other has been longer than desired. Among the problems that made this transition period longer, we find that ordinary Courts refrained from processing the files of juveniles of 16 and 17 years of age in view of the imminent reform. These files were automatically sent from the criminal court to the juvenile jurisdiction on 13th January 2001 and have been processed and settled gradually in subsequent years. This has made the system face a much heavier workload than usual, which is an aspect to be considered.
To avoid the impact that might be caused by the entry in the system of the modified age groups on the analyses of trends, according to the different laws, figure 2 uses the number of Police arrests from 19977 to 2003 of all delinquents under the age of 18, where we can see that after an increase in the number of arrests in 1999, figures remained constant in subsequent years showing a light decrease in the last year.
Figure 2. Police arrests (0 to 17 years old) Rate/10.000 Population of this age. Source: Ministry of Home Affairs
Regarding the type of delinquency, the authors of this report wondered whether in Spain, as in other countries, (Barberet, 2001) an increase of violent behaviour had taken place. As can be observed in figure 3, the conclusion can be reached that in Spain violent crimes have also consistently increased since 1997.
Figure 3. Number of arrests (0 to 17 years old) for violent crimes. Source: Ministry for Home Affairs.
Finally, we very much regret that in Spain there are no data from self-report surveys, as happens in other countries, which could complete and corroborate the data supplied by official sources. Only one survey of this kind was carried out in 1992 (Barberet, Rechea Alberola and Montañés Rodríguez, 1994) but since it was done a long time ago, the usage of this information has been rejected.
In the Spanish system there is no specific plan to prevent juvenile delinquency. However some actions are taken towards preventing criminal behaviour.
Preventive actions are basically focused on the development of social conditions to achieve more equality and so to make committing crimes “unnecessary”. This tendency comes from the southern European countries which promote the protection of children’s rights as policies to prevent social maladaptation (Bernuz Beneitez, 2000). These actions are basically strategies of secondary prevention that imply working with groups at risk and take place through the systems of youth protection. These systems do not have a national structure but are the responsibility of regional governments, so we could say that each community presents a different reality on this respect.
In addition, there are a series of programmes in the framework of primary intervention at the national level and promoted by the Ministry of Education. Among them, we draw attention to a programme to prevent school violence and ‘bullying’,8 and the programmes developed within the Health Promoting School9. However, these are very specific and limited experiences without a strong economic and political commitment and they are very rarely evaluated.
Agents of the Spanish Juvenile Justice System
The Juvenile Justice System in Spain is made up of a group of professionals which, especially since 2001 and complying with the rules of the United Nations, must be specialized in this field, thus guaranteeing that all actions taken will be in the juvenile’s best interest.
Although it is the Prosecutor’s Office that leads the actions in this system, the new law has conferred upon all professionals a specific role within the juvenile justice system, on an equal level of importance, thus confirming a tendency existing in a lot of countries close to us. This has created a horizontal juvenile justice system that traditionally had a pyramidal structure (Bailleau y Cartuyvels, 2002:279). In this section we are going to analyse the influence of each professional’s role in the system.
The role of the Prosecutor
As has been said, the Prosecutor is the main reference figure in the Spanish juvenile justice system. The leading role of the Prosecutor was first introduced in the reform of 1992 as an innovation in criminal-policy that incorporated the figure of an investigating judge (Fernandez Molina and Rechea Alberola, in press). In the Spanish justice system the Judge is the jurisdiction’s authority, so he is in charge of adopting the decisions concerning the procedure; there is the double figure of an Investigating Judge and a Sentencing Judge in order to guarantee the impartiality of the latter.
The reform of 1992 tried to experiment in Spain with practices established in other countries where the Prosecutor is in charge of the instruction of the procedure using juvenile justice as a laboratory to test what could be the future reform of the whole penal system. This experience was positive since this professional has been consolidated in the system, replacing the Spanish traditional Judge (Rechea Alberola and Fernández Molina, 2003). Because of its success the current government is studying the possibility of introducing this reform in the adult criminal system.
The Prosecutor conducts the preliminary investigation while the Juvenile Court Judge is responsible for safeguarding the rights of the person under investigation. At this stage the Prosecutor is also assisted by the Police to determine the juvenile’s participation in criminal acts (art. 6), and by the Social Team to determine the most appropriate measure for the juvenile’s psycho-social situation (art. 27.1).
Apart from the investigation of the facts, the Prosecutor also has an important role of procedural efficiency. This implies that he is not only going to intervene in the instruction but in the whole procedure: the hearing (art. 8, 31 y 32), possible pre-trial measures (provisional measures J-T) (art. 28), in carrying out the measure (article 14, 44b y 50), in substitution or suspension of the measure (articles 40 y 51) and in the appeal system (article 43).
In Spain each province has a special Juvenile Section within the Prosecutor’s Office where there is, at least, a specialised Prosecutor (in some cases there could be many more, and in other cases there might be several but not exclusively devoted to juvenile justice).
The time between committing the crime and the Prosecutor’s acknowledgement of the case is usually 10 months. Nevertheless, as has been said at the beginning of this report, a new Law has meant a difficult and laborious transitional process which is still affecting the system. For example, crimes committed by 16 and 17 year olds before 2001 are still dealt with today. They were being handled by the adult court when the Law came into effect and were transferred to be dealt with under the new Law which was considered more benevolent than the adult process. So if we do not take into account the average time needed to complete a case but the value of the median, the time the Prosecutor takes to deal with a case is 3, 4 months.
The role of the Police
Although the OL 5/2000 admits the need of specialised Police Groups, called GRUME (Juvenile Groups), they have not been assigned many functions. In Spain the Police do not act differently with juveniles than with adults, as opposed to what happens in other countries like the Netherlands (Junger-Tas, 1998), the United Kingdom (Bottoms, Haines y O’Mahony, 1998) or Ireland (O’Sullivan, 1998) where they can caution the juvenile or adopt diversionary measures.
The GRUME are only in charge of arresting the juvenile delinquent and helping the Prosecutor clarify the facts. The OL 5/2000 only mentions the Police twice, when it rules on the functions of the Department of Public Prosecutions and entrusts them to order the Police to verify the facts and the juvenile’s participation (art. 6), and when it regulates the arrest of juveniles (art. 17).
However, although it is not mentioned in the Law, there is no doubt that the GRUMES’ actions are wider. Firstly, because the groups have responsibilities with juvenile delinquents as well as with juvenile victims, so their work has undoubtedly preventive potential. On the other hand, the groups become in practice an important element in the juvenile justice system since they are in permanent contact with all its institutions: Juvenile Courts, Department of Public Prosecutions, Social Services, etc.
Regarding the actions to be taken with juvenile delinquents, the first one must be to determine their age. If the juvenile is under 14 years old and so excluded from the actions of the juvenile justice system, the Police must restrict their actions to the field of juvenile protection. Once the juvenile’s age and identity are determined, the rules of juvenile protection10 will be applied. The Department of Public Prosecutions will be informed of the known facts and circumstances by sending the Police report, referring the juvenile either to his lawful attorney or to the public entity for juvenile protection.
Another of the main actions carried out by the Police is detaining the juvenile: in this case the action must be most respectful of the juvenile’s rights, in particular when they must guard the juvenile’s protection (art.17).
The police can also keep juveniles in short-term custody, but only for 24 hours before formally accusing them of a crime. During that time, juveniles have the same constitutional rights as adults, as well as some specific ones due to their juvenile condition such as:
Law enforcement officers must use clear and understandable language according to the offender’s age.
Before a statement is taken, a written notice of the time, place and purpose of the taking of the statement is given to the parents or guardians, the lawyer and the Prosecutor.
During these 24 hours, the juvenile must be kept in a special room away from adult offenders.
The role of the Social Team
One of the main roles of the Social Team (ST), which includes psychologists, social educators and social workers, is to prepare a “technical report” at the prosecutor’s request. The report must be an objective statement about the juvenile’s family, his or her social and educational history, and any previous involvement with private or public agencies the juvenile has had. The report also describes the juvenile’s physical and mental health, and makes a recommendation as to which treatment alternatives should be advisable in this case.
The OL 5/2000 also establishes the intervention of the ST in other phases of the procedure trying to guarantee that all decisions are to be made respecting the juvenile’s psycho-social situation.
Apart from this advisory role, the ST accomplishes other functions that turn it more into a forensic team. Among these functions we find the option of a foster-home, the de-judiciarization of the proceedings (art. 19 y 27.4), social and psychological assistance while the juvenile is detained (art. 17.3.), and providing all the care, protection and social and psychological assistance required, bearing in mind his age, sex and personal characteristics.
The role of the Juvenile Judge
Once the figure of the Investigating Judge has been assumed and integrated into our system, with the shrinking role this involves for the Spanish juvenile Judge, the new Law has exactly determined his role in juvenile procedures, conferring him numerous and important functions all along the procedure. Thus, during instruction he will be the Guarantee Judge of the juvenile’s rights, the Sentencing Judge during the procedure at the hearing, and when pronouncing a sentence, the Enforcing Judge when the measure is carried out (in the same way as the role of the Penitentiary Surveillance Judge in the adult system). He must make sure that the Administration executes the sentence, and finally he will be a Civil Judge when in charge of processing his civil responsibilities.
The role of the regional government
Since the reform of 1992 the services of regional governments are the ones in charge of carrying out the measures adopted by Juvenile Judges. This decision had a huge significance at the time for two reasons: firstly, because it implied the assumption of the decentralization of the juvenile criminal enforcement system; and secondly, because the design of a global child policy, ranging from the protection of juveniles at risk to a judicial response to criminal behaviour, was being strongly supported.
This way, in Spain, juvenile educational intervention has a different dimension in every region, difference mainly based on the uneven supply of resources between them and the different degrees of social conditions in each region, in terms of differential crime rates, social isolation, importance of immigration movements. In this respect Madrid and Catalonia are very different from other regions like Castilla-León or Castilla-La Mancha, or smaller ones like Asturias or Cantabria.
The role of the defence lawyer
The new Law requires lawyers to follow the same specialized training as Judges and Prosecutors. As in the adult system, the attorney in the juvenile justice system is involved in each phase of the process in order to safeguard the juvenile’s rights.
Main actions during instruction
In this section we will analyse two actions taking place during instruction and which are especially interesting because they are more specified than the ones in the ordinary system, and are focused on the juvenile’s best interest: the adoption of pre-trial measures and the possibility of decriminalizing the proceedings.
One of the most problematic aspects during instruction could be the need to adopt a pre-trial measure. Once the Police has referred the juvenile to the Prosecutor, he has 24 hours to make a decision between (art. 28) releasing the juvenile for a later appearance in a formal hearing, or asking the Judge for pre-trial measures.
If the Judge is asked for pre-trial measures, he has 24 hours to impose such a measure. For the judge to impose a pre-trial measure, he or she has to take into account: the juvenile’s safety, the protection of the person or property of others, the juvenile’s subsequent presence at the hearing, the seriousness of the offence, the juvenile’s record and the social upheaval caused by the offence.
The pre-trial measures that can be applied are: custody,11 probation or living with another family.
Decriminalization in the OL 5/2000
The fact that the Prosecutor has the monopoly of penal action in the Spanish juvenile justice system means, among other things, that decriminalization strategies are in his hands.
The new law allows the proceedings to be dismissed in the best interest of the juvenile, thus avoiding a formal response, either by the Public Prosecutor at his own Office or by the Judge immediately after initiating proceedings, in order to avoid a trial.
“Decriminalization” carried out by the Public Prosecutor
The new legislation allows the Public Prosecutor to act more freely. Following former laws, the Prosecutor had to ask the Judge to dismiss proceedings in the juvenile’s best interest. After the enactment of the new law, the Prosecutor may dismiss proceedings, without asking the Judge, if the offence is minor and committed by a first offender (art 18). In this way, the Prosecutor carries out an important “filtering” task in the juvenile justice system because first offenders committing minor offences will stay out of the system.
“Decriminalization” carried out by the Judge
The other way 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 by the principles of “Restorative justice” (victim-offender mediation, reparation of the damage or an educational task). The Prosecutor has the power to request dropping the charges through this alternative, depending on the seriousness and circumstances of the offence -when it is a non-serious offence- and when the mere promise of the juvenile to repair the damage or injury caused to the victim seems insufficient. If the mediation process is successfully completed, then the prosecutor can request the judge to dismiss the case.
The Judge may also dismiss proceedings (art. 27.4) when, although the juvenile is not a first offender, the ST recommends a second chance in the juvenile’s best interest, provided that the offence is not serious -especially if there has not been either violence or intimidation-, 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.
Implementation of decriminalization in the Spanish Juvenile Justice System
Next, we analyse the application of this course of action which avoids formalization of the responses in less serious cases. To do so, we use data from the Prosecutor’s Office, comparing national data with those of the region of Castilla-La Mancha.
First of all, we would like to point out that information in figure 4 shows the number of reform proceedings that have been taken by the prosecutor and the juvenile judge because of an alternative disposal (art. 19) or a dismissal in the juvenile’s interest advised by the ST (art. 27.4). Therefore, it is not possible to distinguish between which proceedings are dismissed for which reason.
Figure 4. Decriminalization in the Spanish Juvenile Justice System. Source: Prosecutor’s Office (2002)
As can be seen in figure 4, nationwide, the Prosecutor’s “decriminalization” has more impact than that of the Judge. However, if national data are compared with data from a particular region such as Castilla-La Mancha, the distribution between both strategies is different. In this region, although the number of charges dropped by the Prosecutor remains high, the number of cases dismissed by the Judge greatly exceeds the national average.
Such differences may be due to the uneven development of “restorative” practices throughout Spain. The Prosecutor dismisses a lower number of proceedings in order to come to some kind of agreement with the victim in regions where there are enough staff and resources to carry out such practices, despite the fact that this involves higher levels of intervention. Nevertheless, the Prosecutor may avoid excessive criminalization by dismissing cases from the beginning whenever staff and resources are limited.
The problem with resources is due to the fact that the law orders the ST to carry out actions related to mediation with the victim and reparation of the damage. The ST has a great deal of work to do within the framework of justice enacted by the new law, and, as a consequence, ST’s have become overworked. This is the reason why only regional administrations which have their own teams carrying out restorative action, are able to foster this practice. Occasionally, local social services, or even NGOs (through some kind of agreement), co-operate in the implementation of restorative action in some regions. Castilla-La Mancha is one of the regions which carry out their action through agencies such as those that can be seen in the table below.
Table 1. Agencies carrying the mediation task in Castilla-La Mancha
Community intervention team
Services through agreement with NGOs
Spontaneous action by different parties
Source: Fernández Molina (2004).
In any case, we can conclude that the final balance of decriminalization in the Spanish juvenile justice system is quite acceptable since it allows half the cases to be dismissed before the hearing. However, most cases are dismissed in the Prosecutor’s Office and not in the Juvenile Court. This means that the charges have been dropped mainly because they were first offenders and because of the non-seriousness of the facts, and not because of the personal evaluation of the case, or because the juvenile’s psycho-social circumstances have advised so.
On the other hand, we should point out that, through this decriminalization strategy, the system is not only trying to avoid criminal procedures for juveniles but also to give a quick response in the case of petty offences. The following table shows the time the proceedings take when the case is dismissed in the juvenile’s interest (art. 27.4), a restoration process has been carried out (art. 19) or the case has been resolved by means of a formal process where a measure12 has been adopted.
Table 2. Time elapsed between different moments of the process (mean and median)