ADIR - L'altro diritto

ISSN 1827-0565

The settlement of juvenile trial in Spain
Legal and sociological aspects

Paola Sánchez-Moreno, 2002


When democracy was restored in Spain in 1977, juvenile justice has been marked by half a century of positive-correctional ideology, but at that moment begun a transformation process whose result is the settlement program of Catalonia.

To understand the program this research examines the history of the juvenile justice system since its birth, describing the first juvenile tutelary courts, established in 1918, that where administrative institution, whose staff was not part of the judiciary ranks.

The second chapter of the research examines the legal transformations that followed the restoration of democracy and of the rule of law in Spain. This new period in the political and social history of Spain led to the search for a modern and efficient model for dealing with young offenders. That model was identified in the so-called responsibility model. The first step in the adoption of this model was the 1992 law n. 2, an interim and emergency law that nevertheless established a flexible trial, consistent with the constitutional guarantees and aimed firstly at child protection. This trial model follows the minimal intervention principle, and rules the possibility to settle a dispute through extra-judiciary means such as settlement and wrong amend.

However, it is only with the 2000 law n. 5 that a comprehensive juvenile legislation is made available. This law regulates also some extra-judiciary means of settlement, and one of this is the Catalonia mediation programme, that is discussed in the third chapter.

The origins of similar programs lies in the inadequacy of the criminal law to achieve its intended goals: general and special prevention. This tendency towards minimal justice and settlement is also promoted by many international documents (by UN and Council of Europe), and after this tendency the Justice Department of the Catalonia Generalitat in 1990 set up some programs for settlement and wrong amend. Room for the settlement is available in two different moments of the juvenile trial, though the preliminary investigation would be the better in order to spare the young offender with the trial. The Catalan model of settlement is based on reeducation and amend, the latter for its supposed capacity to give responsibilities to the young offender. If the mediation succeeds, that is, if a settlement is reached and if the young person fulfil it, then the case will be dismissed. The third chapter of the research ends with a survey of the data on the last ten years of carrying out of the program.