Tech & Rights

Spain Is Failing to Protect the Rights of Foreign Minors in Its Criminal Justice System

Rights International Spain has carried out an investigation within the framework of a European project which has culminated in a report that points out serious deficiencies in the compliance with the Procedural Directives related to juveniles.

by Rights International Spain
Rights International Spain has published the national report on Spain "Procedural Rights of Juveniles Suspected or Accused in the European Union," which is one of the five national reports developed as part of the PRO-JUS project. The report is the result of research that included desk research, analysis and semi-structured interviews with adult stakeholders and children.

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 three EU procedural directives (access to a lawyer, right to information and translation and interpretation).

The information and findings obtained in this 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 directives don´t match the views of the children.

  • On the right to interpretation and translation:

This research has revealed that there are deficiencies in the system that prevent the right to interpretation from being fully exercised by children suspected and accused in criminal proceedings. On the other hand, the exercise of this right is put at risk because there are no rules governing the registration 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 service and the workers of these companies, who are not always qualified, perform some terrible interpretations that make it impossible for suspected or accused children to have a fair trial. Moreover, 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 such criteria implies that interpreters are absent on many occasions when his or her presence would have been necessary. Therefore, the fact that children have a basic knowledge of the language (albeit far from sufficient to exercise their right of defense properly), serves to rule out the presence of the interpreter. However, in order to participate fully in proceedings and to understand what the matter is, it is necessary to have linguistic skills 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.

  • On the right to information and access to materials:

As we could verify in Spain, information about rights is mainly given to accused or detained children in oral form. In general, we could see that professionals have difficulty 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.

Although professionals know that the information must be appropriate for the age of the child, they haven't managed to build a discourse on rights that children can understand.

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.

The access to materials for lawyers to prepare the defense of the case has improved, although 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 finalized, as well as providing access to the information desired throughout the proceedings.

  • 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 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 an interpreter appearing anywhere other than in official settings, cannot communicate with their lawyers to prepare their defense. 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.

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 a 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.

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