The Transformation of Criminal Law: From Public Domain to Privatization
1. The Criminal Law and its Membership in Public Law
Criminal law belongs to the public domain because it regulates private relationships with the state, which is the only entity entitled to create and enforce criminal law. The judiciary is responsible for applying the law, while criminal administration assumes the obligation of executing sentences. The judge oversees prison supervision, which the administration carries out.
In recent times, several institutions have emerged and been incorporated into criminal law, making us question whether we are still dealing with public law or witnessing a privatization of it.
1.1. Semi-Privatization of Crime
One example of semi-privatization is the concept of semi-crimes or offenses. Public offenses are prosecuted ex officio, while private crimes require a prior complaint from the victim to initiate proceedings. Without a complaint, the courts cannot investigate. In private crimes, the victim’s forgiveness ends the proceedings.
In the case of semi-criminal (or semi-private) offenses, a prior complaint from the victim is required, but forgiveness does not end the process. Once started, the judiciary continues with the case until the end, regardless of the offended party’s forgiveness. Let’s examine the basic procedural differences between crimes:
a. The Complaint (Public and Semi-Crimes)
In public and semi-crimes, the complaint can be filed at any court or prosecutor’s office. However, filing a complaint does not automatically make the complainant a party to the police investigation or guarantee their inclusion in the process.
b. The Complaint (Private Crimes)
The complaint is also the initiation method for private crimes. It must be filed with the competent court and automatically makes the complainant a party to the process.
The criminal justice system’s process originates from the 19th-century criminal procedure law. Despite some modifications, the basic institutions remain the same. The ordinary process for judging these offenses shares several characteristics:
- Agreed-Upon Rules: Parties in criminal proceedings agree on the rules governing the process.
- Unstoppable Process: Once initiated, the process continues to its conclusion.
1.2. Mediation and Conciliation
A parallel alternative to the traditional process is the system of mediation and conciliation. While not explicitly provided for in the Spanish criminal procedure law, this system appears in legislation of other countries like Canada, South Africa, and Australia. It applies only to minor crimes or omissions.
In this system, mediators, often professionals hired by the administration, facilitate communication between parties to reach a possible solution. The offender acknowledges their fault and seeks forgiveness, ending the process upon the other party’s acceptance.
Spanish criminal law reflects this in Article 19 of the Law of Criminal Responsibility of Minors (2000), stating that cases subjected to mediation or conciliation cannot undergo the normal process. The judge must accept the parties’ decision, even if they personally disagree.
1.3. Compliance Proceedings
Mediation agreements are gradually being incorporated into the traditional process for adults in various courts, aiming to achieve compliance proceedings. While lacking national legislation, these agreements prioritize repairing the damage caused to the victim.
The defendant acknowledges their guilt and accepts the prosecutor’s sentencing request. The defendant’s lawyer and the prosecutor agree on a solution presented to the judge, who may accept or reject it (unlike the previous system). This system involves a transfer of the right to a fair trial, with the judge essentially endorsing the parties’ agreement.
The prosecutor holds significant power in these systems. In the U.S., the principle of opportunity governs whether to press charges based on the circumstances and the appropriateness of a prior agreement. In Spain, the principle of guilt prevails.
Mediation, conciliation, and conformity are institutions outside the continental system based on the principle of legality. However, they are being introduced into our legal environment for their speed, efficiency, and cost-effectiveness. The trade-off is the potential loss of rights and guarantees for the accused.
For adults, the agreement process is regulated for crimes with a maximum sentence of nine years. Cases with longer sentences proceed through the ordinary process. This system involves an admission of guilt and an acceptance of a sentence.
1.4. Private Security and Prisons
The fourth institution is the emergence of private security or police (private prisons). The need for private security has increased significantly in Spain due to heightened risk and the considerable growth of businesses (banks, jewelry stores, etc.) demanding a higher level of security than the state can provide. Outsourcing to private security companies has become a more cost-effective solution for the state. Private prisons operate as subcontractors.
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