When a person turns 18, they are of legal age for all purposes: they can drive, vote and, also, go to jail if they commit a crime. She will be tried, convicted and taken to prison as an adult. Before, you are only responsible for a crime if it is committed between the ages of 14 and 18. In that age range is the boy who, at the age of 15, shot dead his parents and his brother in Elche. So are many of those belonging to Latin gangs such as the Ñetas, the Latin Kings, the Trinitarios or the DDP. The criminal law of minors is applied to all of them, which means that they will have a process with its own regulation, different from that of those over 18 years of age, with specialized judges and prosecutors and penalties specifically provided for them.
Under the age of 14, a minor does not have any type of criminal responsibility. This is so because it is understood that he is not in a position to realize what the law requires of him, so he cannot be guilty and, therefore, will not be convicted of the crime. This is the case of the 13-year-old who recently stabbed a teacher at a school in Murcia. In these cases, it is only possible to claim damages from the parents or guardians of the minor by civil means. The minor will be included in a follow-up plan that assesses his social and family situation, designed and carried out by the competent social services of each autonomous community.
Regarding this system of fragmentation by age, Alejandro Ruíz de Pedro, a lawyer who has intervened in various processes with minors, believes that “we treat minors as a generality, when each one is a world. That should also raise the need for assess the maturity of each minor, instead of age, to assess their understanding of the facts for which they are prosecuted. Opening a criterion of subjectivity is conflictive, but we see minors with a very different range of understanding at the same age, “he explains .
criminal age
To determine the age of the alleged offender, the age at the time of the commission of the acts is taken into account. Therefore, it does not have any incidence that the minor is over 18 years old before starting the procedure or during its processing.
For the computation of the age of majority, the criterion of the Civil Code is not applied, according to which the day of birth will be included in full. It is counted from moment to moment, in accordance with the principles that inspire Criminal Law. That is, if the person who commits the crime does so on the day he turns 18, but before the time his birth is registered, the criminal law of the minor will continue to apply to him.
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To know the age, when the DNI, passport or any other identification document is not enough and there are still doubts, the literal birth certificate expressing the time of delivery will be brought to the process. In any case, interpretive difficulties must always be resolved in favor of the minor.
The problem usually arises when it comes to setting the time of commission of the acts, since it is not easy for certain offences. This is the case in continuing crimes (several similar criminal actions that are considered a single crime), such as the case of bullying or cyber scams. In these cases, criminal actions will be divided into two groups. For the criminal law of minors, only those acts committed between the ages of 14 and 18 will be taken into account. Those who are executed having exceeded the age of majority will be judged by the justice of the elders.
There are also cases of permanent crime (a single criminal action that lasts over time). If during that period the author of the acts turns 18, it will be the ordinary justice that judges him, without being able to take into account the conducts committed before for the purposes of the aggravation of the sentence.
Finally, it may happen that, between the beginning of the criminal action and the result, the person exceeds the age of majority, in which case the years he/she was at the time of the action will be taken into account, even if the result has already occurred. turned 18.
Crimes and aggravating circumstances
The crimes that a minor can commit are the same as those of an adult. In other words, there is no specific regulation for minors, but the Penal Code also applies to them. Therefore, a homicide, murder, or injury committed by a minor must meet the requirements of criminal law. Thus, for example, in the case of the Latin gangs that are operating in Madrid, the members could be responsible for the crime of belonging to a criminal organization or group, in addition to the crime that derives from the damage they cause.
And the same happens with the aggravating, mitigating and exempting of the crime, they are the same that the Penal Code collects for the elderly. In the case of the parricide in Elche, for example, the aggravating circumstance of kinship could be applied. But, if during the trial it is concluded that he has some psychic alteration, a transitory mental disorder or mental derangement, this could constitute either a mitigating factor and reduce his sentence, or a defense. In the latter case, a therapeutic internment would be applied to him for his mental illness or he would be given outpatient treatment consisting of attending a center designated by the doctors, with the periodicity they determine, to treat his ailment.
juvenile trial
In these processes, it is a juvenile prosecutor who directs the investigation to clarify the facts. The juvenile judge, for his part, will be in charge throughout the procedure of guaranteeing that the fundamental rights of the minor are respected and, once the investigation phase is over, he will proceed to judge him.
The process has the particularity that the protection of the minor is always prioritized, in such a way that his conviction in no case entails a stigmatization that could harm his future development. For this reason, a member of the technical team (psychologists, educators and social workers who assist the judge and the prosecutor) will always be present at the trial to propose the most appropriate measure for the offender.
Minors are protected to such an extent in these processes that the professionals involved do not wear a gown so as not to impress them, says Alejandro Ruíz de Pedro. However, the lawyer is critical in this regard: “When they are in court for having deeply injured someone, for having killed or robbed repeatedly, when they know that they are going to file a social penalty, do we really believe that a toga traumatizes them? ? We are plugging a leak on the Titanic with plasticine balls, ”he considers.
On many occasions, the criminal process of minors ends with a mediation agreement in which the minor will undertake to repair the damage caused, carrying out the activities proposed by the professionals in charge of said mediation.
If the trial ends with a sentence, the convicted person will be imposed some specific “measures”, a term that the juvenile criminal law uses instead of “penalty”. These have a preventive and educational objective, never punishment. They can range from a reprimand, the performance of socio-educational tasks, work for the benefit of the community, to probation or, the hardest, internment. This will be carried out in juvenile detention centers, commonly known as reformatories, although the law does not call them that because of their negative connotation. These centers have their own rules of action, different from prisons for the elderly.
It is important to note that, although in general the duration of the measures cannot exceed two years, assumptions are foreseen in which it is extended. Here, again, age will be taken into account, because from the age of 16 the duration of the measures is higher, and internment may reach up to eight years.
Convicted age of majority
When the minor who is serving an internment reaches the age of 18, the juvenile judge may, optionally, order that the sentence continue to be served in an adult prison. From the age of 21, the general rule is that he goes to a prison, with few exceptions.
As with many of those belonging to Latin gangs, if the crime is committed by a minor who is a national of another country, the corresponding consulate must be informed. If it is up to the Spanish justice to judge him, an official translator is assigned, if necessary, and the process of minors continues as if it were a Spaniard.
However, unaccompanied foreign minors can be repatriated to their country of origin so that they can return to their family, even if they were involved in a judicial process, as long as the judge authorizes it. Repatriation will not proceed if you have relatives in Spain or are under the guardianship of a Spanish authority.