defending rights and civil liberties

Juveniles and procedural rights

National Report

 

 

This report constitutes one of the 5 national reports developed as part of the PRO-JUS project and deals with Spain. The report is the result of research which has combined desk research, analysis and semi-structured interviews with adult stakeholders and children. Developed according to a common research methodology that was employed in all of the 5 project countries, the report presents the research findings and identifies noteworthy practices and recommendations. In line with the aims of the research, the report also discusses the factors that affect and hamper the effective enjoyment of the rights enshrined in the 3 EU procedural directives (access to a lawyer, right to information and translation and interpretation). The information and findings found in this report and the other national reports will serve as the basis for the development of a regional comparative report that is also envisaged to be developed with the PRO-JUS project.

 

This research has made it clear that the perceptions held by professionals on the practical application of rights enshrined in the 3 EU directives do not match the views of the children. It is therefore worth delving into how these rights are exercised taking into account the views of both.

 

  1. On the right to interpretation and translation:

 

This research has revealed there are deficiencies in the system that prevent the right to interpretation from being fully exercised by children suspected and accused in criminal proceedings. In addition, since parents and/or legal guardians of children have a crucial role in the criminal proceeding, it would be necessary to provide them with interpretation services since, in many cases, they have even more difficulties to understand the language than their children.

 

On the other hand, the exercise of the right to interpretation is put at risk because there are no rules governing the registry of translators and interpreters, including what the requirements or qualifications should be to guarantee the quality of service. The lack of appropriate resources is forcing the State to hire private companies to provide the interpretation service and the workers of these companies, who are not always qualified, perform some terrible interventions that make it impossible for suspected or accused children to have a fair trial. On the other hand, the lawyers rarely file appeals when the interpretation is of poor quality. There is no clear perception of when a service is of bad quality and unless great difficulty is observed, a review of the proceedings is not considered.

 

In addition, we have seen that there are no clear criteria clarifying when the interpreter should be present. The absence of this procedure implies that interpreters are absent on many occasions when actually his/her presence would have been necessary. Thus, the fact that children have a basic knowledge of the language (albeit far from sufficient to properly exercise their right of defence), serves to rule out the presence of the interpreter. However, in order to participate fully in proceedings and to understand what the substance is, linguistic skills are required that go beyond a superficial knowledge of the language.

 

In the same way, and in relation to the right to translation, the lack of resources means that the provisions of Directive 2010/64, which require the most important passages of essential procedural documents to be translated, is inconceivable at this point in time.

 

  1. On the right to information and access to materials:

 

As we could verify in Spain, the information of rights to accused or detained children is mainly in oral form. In general, we could see that professionals have difficulties developing a discourse that children can understand. Thus, the use of complex structures and the use of legal jargon, for children, is very difficult to understand. While professionals have a clear conscience regarding the fact that the information must be appropriate for the age of the child, in reality they do not construct a discourse on their rights, that children can understand, enabling them to grasp their meaning. Their testimonies show that children are able to identify their rights, especially, those who have more experience, but all denote difficulties in understanding what their true scope is and the nature of the proceedings in which they are involved. This difficulty is accentuated when facing children that have difficulties with language.

 

Regarding information on these rights in writing, we observed that during detention, there are some forms in police stations providing written information on the applicable rights. However, we could see that in practice not all police stations provided this document for children so that they have it with them at all times and consult it when appropriate. In addition, these documents are not always available in the mother tongue of the children and, again, the wording and the complexity of the words used generate problems for understanding.

 

Moreover, despite the fact that the legislation provides for an information rights phase, if this information is not made accessible to children, this procedure is useless. Children interviewed confess that they do not understand exactly what such rights mean and what their true scope is. Consider also that their rights not are always respected, especially, the right to be heard, which generates significant dissatisfaction, as they feel that their opinion is not taken into account in the proceedings and that everything that occurs there is somehow aloof.

 

Finally, the access to materials for lawyers to prepare the defence of the case has improved, although it is pointed out that such access, nowadays, is only to see and consult, but does not allow for full copies to be made. In addition, and in relation to this right, we ascertained that a good practice would be to deliver all the information on the case to the child once the case documentation has been finalised, as well as providing access to the information desired throughout the proceedings.

 

  1. On the right to access to a lawyer, to communicate with a third party and the consular authorities:

 

We noted that sometimes the exercise of the right to access to a lawyer is unduly delayed, with the start of the lawyer’s activity being contingent on the arrival of the legal guardian. Delays also occur in the case of foreign children arrested at night, since the private interview with the lawyer and taking of a statement are postponed until the arrival of an interpreter, who is only available during office hours.

 

However, the biggest problem is observed in relation to the right to access to a lawyer during the trial. At this point, foreign children who have difficulties with the language, and given the impossibility of interpreter appearing anywhere other than official premises, cannot communicate with their lawyers to prepare the defence of the case. Therefore, in this case, the status of foreigner becomes a condition that violates a basic procedural guarantee and therefore limits the right to a fair trial.

 

On the other hand, we observed a deficit of expertise in the group of lawyers who have difficulty identifying what their true role is in these proceedings. Thus, overly protectionist, paternalistic attitudes coexist with practices pertaining to the ordinary system for adults, which means lawyers forget that their clients are underage. The end result is that children consider that their lawyers, particularly those working on a legal aid basis, have a passive attitude, which contributes to creating even more distance between the accused youth and the juvenile justice system.

 

Finally, we were able to verify that juvenile detainees are exercising their right to communicate with their legal guardians. However, the additional guarantee offered by the latest reform to inform and/or contact third parties other than their guardians is not complied with. Moreover, there are doubts as to whether such right can be counter-productive for the progress of the investigation. In the same way, we observed that, in some exceptional situations, the right to communicate with a consular authority could be damaging for the foreign juvenile.