Criminal Responsibility of Minors in Spain
Item 16 – Provisions Applicable to Minors
The Criminal Responsibility of Minors in the Current Spanish Penal Law
Art. 19 CP: Individuals under eighteen years of age will not be held criminally liable under this Code. When a child of that age commits a criminal act, they may be liable under the provisions of the law governing the criminal liability of minors.
The Organic Law 5/2000 of January 12th covers different situations depending on the age of juvenile offenders:
Under 14 Years:
They are not subject to the Criminal Code or the Law of Criminal Responsibility of Minors, as stated in Art. 3 of the Act. This means that children under 14 years have absolutely no criminal liability under Spanish law and are completely immune from prosecution. This age limit is relatively high compared to other European countries, where it can be as low as 8 years. However, this higher limit is required to ensure that individuals are treated as adults when they reach the age of criminal responsibility.
At the age of 14, individuals are covered by child protection standards under the Civil Code and other standards (Article 3 of the Law on Criminal Responsibility of Minors).
Children Between 14 and 18 Years of Age:
Minors between 14 and 18 are covered by the Penal Responsibility Law of the child, provided they commit crimes or misdemeanors specified in the Penal Code or special penal laws. The Code distinguishes between individuals who are 16 years old or older and those who are younger.
Over 18 Years:
In principle, individuals over 18 years of age are governed by the Penal Code and special criminal laws. However, the Law on Criminal Responsibility of Minors, under Art. COP 69, provides the possibility of applying that law to those over 18 and under 21 years. This provision could be applied under certain conditions, but it is currently suspended, in principle, until January 1, 2007 (unless the crime involves terrorism).
Regarding the age of criminal responsibility in computer-related crimes, according to art. 5.3 of the Act on Criminal Responsibility of Minors, this age always refers to the time of the commission of the offense. Therefore, the age at the time of judgment or when serving the sentence is irrelevant.
Sanctions Applicable to Children: Nature and Types
Art. 7.1 of the Law on Criminal Responsibility of Minors provides a comprehensive list of measures, including detention (closed, open, and semi-open systems), outpatient treatment, etc.
The law distinguishes between children aged 14 to 16 and those aged 16 to 18. In principle, if the child is under 16, the measures imposed will be less severe. If the child is 16 or older, the maximum penalty can be up to five years of detention or 200 hours of social service, especially if the offense involved violence, intimidation, or a serious risk to life or physical integrity.
However, recent legislation has established stricter measures in some cases, particularly for extremely serious offenses (especially repeat offenses). In these cases, the judge must impose a closed detention order ranging from 1 to 5 years, followed by probation and other educational assistance for a maximum of five years. The penalties are even more severe for terrorism-related crimes. If the individual is over 16, closed detention measures of 1 to 8 years will be imposed, and up to 10 years in specific cases. These measures cannot be suspended or replaced until at least half of the sentence has been served.
If the individual is under 16 but over 14, the measure will be internment in a closed regime for 1 to 4 years (up to 5 years for the most serious crimes), followed by a term of probation and educational assistance of up to three years.
The measures under this law were previously considered security measures. However, the Act refers to the criminal liability of minors, and the legal consequences of this framework are very similar to the ordinary system of penalties. In some cases, the law even refers to the blameworthiness of the act committed. Therefore, some argue that these measures are genuine sentences, but they are specifically aimed at the resocialization and rehabilitation of the child.
However, a more accurate view, supported by some legal scholars, is to consider these measures as a mixed system. It could be described as a single-track system with sanctions that have characteristics of both sentences and security measures. Some security measures, such as therapeutic treatment, are clearly distinct.
Implementation of These Measures
The Law on Criminal Responsibility of Minors contains detailed regulations on this issue.
The implementation of these measures is the responsibility of public entities for the protection and reform of minors under the Autonomous Communities, under the supervision of a juvenile judge.
When a child is subject to one of the measures imposed by law and reaches the age of majority, the measure will continue to be applied under the same terms as before. However, if the individual has already reached the age of 23 or turns 23 during the execution of the measure, they will be transferred to prison.
Extinction of Criminal Liability of Minors
The statute of limitations is provided for in Art. 10 of the Act on Criminal Responsibility of Minors, both for the criminal act committed by the minor and for the measures imposed (the limitation period for the punishment is no more than 3 years, and for the actions, it is 3 years). However, if the rules of the Penal Code on Terrorism apply, the Law of Criminal Responsibility of Minors does not.
In addition, Articles 18 and 19 provide for the possibility of withdrawing the case. Art. 18 refers to the withdrawal of the opening of the file for resolution in the field of education and family. This withdrawal can be carried out by the prosecution in less serious crimes without violence or intimidation or in cases of minor offenses. This withdrawal does not affect civil liability.
Art. 19 also allows for withdrawal after the file has been opened. The judge may propose dismissal of the case, and the prosecution also has jurisdiction to do so in less serious crimes or misdemeanors. The decision must consider the gravity and circumstances of the act, particularly the absence of serious violence and intimidation. In addition, one of the following conditions must be met:
The victim has granted forgiveness, implying recognition of the harm caused by the minor and their apologies. The victim must also accept the forgiveness.
The child has committed to repairing the damage, which implies a commitment on their part to carry out activities on behalf of the victim or society and to perform these activities.
The minor has committed to participating in the educational activity proposed.
Special Rules on Civil Liability in These Cases
The Juvenile Accountability Act demonstrates its concern for the victims of crime by establishing joint liability between minors under 18 years of age and their parents or guardians. This liability may be limited in cases where the parents or guardians have not acted with fraud or negligence (i.e., they have not encouraged or negligently allowed the minor’s criminal activity).