Conciliation: Juvenile Criminal Law.

Conciliation: What is it?

Conciliation is the act and consequence of reconciling. It refers to the action of enabling opposing parties to reach an agreement to conclude a dispute.

For legal purposes, conciliation is the agreement reached by opposing parties, through the intervention of a third party, to avoid initiating litigation or, once initiated, to bring it to an end. In the first case, extrajudicial conciliation occurs, which allows a conflict to be resolved before entering the jurisdictional process, while in the second, there is judicial conciliation, which allows the parties to resolve an already initiated lawsuit before the judicial body issues a judgment.

Organic Law on Juvenile Criminal Responsibility and Conciliation.

Organic Law 5/2000, of January 12, regulating the Criminal Responsibility of Minors (LORRPM), provides a flexible regulation of pre-trial methods for resolving a jurisdictional conflict, including conciliation. These methods are based on the principle of opportunity, which is one of the most notable characteristics of juvenile jurisdiction compared to adult jurisdiction, where the principle of legality almost exclusively governs.

Juvenile jurisdiction is generally characterized, in addition to the principle of opportunity, by the principle of minimal intervention, the punitive-educational nature of the procedure, special preventive measures aimed at effective reintegration and the best interest of the minor, flexibility in the adoption and execution of measures advised by the circumstances of the specific case, etc.

Conciliation proves to be a very useful instrument for complying with all these general values that inspire the drafting of the LORRPM. So much so that the Explanatory Memorandum itself, in section 9, expressly indicates that relevance must be given to the possibilities of conciliation between the offender and the victim, in pursuit of the principle of minimal intervention. Furthermore, section 13 speaks of the “particular interest” in repairing the damage caused and the conciliation of the offender with the victim.

In the juvenile criminal process, conciliation between the victim and the minor and the subsequent dismissal and archiving of proceedings requires the minor to acknowledge the harm caused and apologize to the victim, the victim to accept the apologies, and specific effective actions to be carried out for their benefit.

This possibility of dismissing a case through conciliation, although conceived flexibly by law, is not without limits, as it is only possible in less serious or minor offenses without violence or intimidation, and depending on the severity and circumstances of the acts committed by the minor.

Conciliation: Procedural Stages in Juvenile Criminal Procedure. Considerations.

The procedural stage in which conciliation naturally takes place is the investigation phase, with the technical team, at the request of the Public Prosecutor’s Office, being responsible for reporting on the possibility of conciliation with the victim, after assessing the circumstances of the case and considering the best interest of the minor.

The legislator also allows for conciliation in the measure execution phase, meaning that once a judgment imposing condemnatory measures has been rendered, conciliation between the victim and the minor can render the imposed measure ineffective when the judge, at the proposal of the Public Prosecutor’s Office or the minor’s lawyer, understands that the reproach deserved by the minor’s actions has been sufficiently met.

Therefore, it is strange that the legislator has not included the possibility of early termination of the process through conciliation achieved in the oral trial phase. While it is true that the investigation phase provides the necessary opportunities to attempt dismissal of the matter, it may happen that, after the time involved in a jurisdictional process, circumstances lead the victim and the minor to reach an agreement they could not previously achieve. What sense does it then make to prevent closing the matter and, with it, to renounce the principle of minimal intervention, the best interest of the minor, preventive and educational measures, and so many others that inspire the regulation of juvenile criminal responsibility, solely because the agreement was reached at a stage not procedurally foreseen for it?

The difference in the regulation of criminal responsibility, considering the age circumstance, is clear. The legislator drafts the LORRPM from the perspective of a legal good in need of special protection, namely the minor. In order to fulfill the law’s objective, and since conciliation is regulated in the investigation phase and the measure execution phase, it would be appropriate for it to also be possible in the judgment phase, albeit adapted to its procedural requirements. Conciliation in the oral trial phase would cease to be the almost exclusive competence of the Public Prosecutor’s Office, as it has lost its investigative powers and only focuses on prosecuting, leaving the assessment of the agreement’s appropriateness in the hands of the juvenile judge.

The purpose of conciliation in the investigation phase is precisely to avoid entering into the judgment of the matter. If conciliation is not achieved in the investigation phase, that objective is lost, as the oral trial phase has already begun. However, early termination of the lawsuit and avoiding a judicially imposed sentence remains desirable. Even though the possibility of a conformity judgment is open, an agreement between the parties always better suits their needs and allows the minor to understand the scope of the facts and their consequences, as conciliation is the result of prior reasoning, awareness, and understanding of the opposing party.

Given that in juvenile proceedings the “now or never” approach makes no sense, the most appropriate course is to open up the widest possible range of opportunities, in order to uphold the educational justice underlying the regulation of juvenile criminal liability.

Author: María Díaz Rivera

Specialist Lawyers for Minors | IN DIEM: Malaga, Seville, Madrid, Las Palmas de Gran Canaria, Almeria, Huelva…

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