The Transformation of Criminal Law: From Public Domain to Semi-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 laws, while criminal administration assumes the obligation of executing sentences. The judge oversees prison supervision, ensuring the administration fulfills its duties. In recent times, several institutions have emerged and been incorporated into criminal law, making us question whether we are still operating within the realm of public law or witnessing a privatization of it.
1.1. Semi-Privatization: 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 private crimes. In these cases, the victim’s forgiveness ends the process. However, in semi-criminal (or semi-private) cases, a prior complaint from the victim is required, but forgiveness does not halt the process. Once initiated, the judiciary continues with the case 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-criminal cases, the complaint can be filed at any court office or prosecutor’s office. 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)
In private crimes, the complaint is the method of initiation. 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 modifications, the basic institutions still stem from that law. The ordinary process for judging these offenses shares several characteristics. First, parties in criminal proceedings agree on the rules governing the process. Second, once initiated, the process continues to its conclusion and cannot be stopped.
1.2. Mediation and Conciliation System
A parallel alternative to the traditional process exists in the current system: mediation and conciliation. While not provided for in the criminal procedure law, this system appears in legislation of countries like Canada, South Africa, and Australia. It applies only to minor crimes or omissions.
This form of resolution involves judges, lawyers, and prosecutors differently or not at all. Instead, mediators, often professionals hired by the administration, facilitate a possible solution between the parties. The offender acknowledges their fault and seeks forgiveness, ending the process upon the other party’s acceptance (as an agreement or transaction). In Spanish criminal law, this is reflected 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. Judges 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, facilitating compliance proceedings. While lacking national legislation, these agreements prioritize repairing the harm caused to the victim. The defendant acknowledges and accepts the prosecutor’s sentencing request. The lawyer and prosecutor agree on a solution presented to the judge, who may accept or reject it (unlike the previous system, where the judge’s decision is binding). This signifies a transfer of the right to a fair trial, with the judge essentially ratifying the parties’ agreement. The prosecutor holds significant power in these systems. In the U.S., the principle of opportunity governs (charging discretion based on the source and whether a prior agreement is appropriate), while in Spain, the principle of guilt prevails. Both 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 reasons of speed, efficiency, and cost-effectiveness. The trade-off is the potential loss of rights and guarantees for the accused. It’s worth noting that the agreement process for adults applies to crimes with a maximum sentence of nine years. Sentences exceeding this threshold are subject to ordinary proceedings. While there is an admission of guilt, it’s ultimately an acceptance of a sentence.
1.4. Emergence of Private Security and Prisons
The fourth institution is the rise of private security or police (private prisons). The demand for private security has surged in Spain due to increased risk and the considerable growth of businesses (banks, jewelers, etc.) requiring a higher level of security than the state can provide. Outsourcing to private security companies offers a cost-effective solution for the state to address these deficits. Private prisons operate as subcontractors.
te as subcontractors.