Military and Juvenile Justice: Procedures and Principles
Military Jurisdiction: Peculiarities and Procedures
Composition and Hierarchy of Military Courts
Room V of the Military Tribunal of the Supreme Court demonstrates the linking of this special jurisdiction with the ordinary courts. It consists of:
- Four Career Magistrates
- Four Legal Corps of the Army
- The Clerk of the Board
Below this lies the Central Military Court, based in Madrid, with jurisdiction throughout the national territory. After it is placed on the Military Courts Territorial number 5 (one per each military region which divides our area). Finally, are situated the Military qualified judges, issued as individual organs and can be attached to the TMC or the TMT.
Constitutional Principles and Procedural Law
Military jurisdiction is subject to constitutional principles (the principle of uniqueness, unity, independence, etc.), to a fair trial, and constitutional rights and constitutional principles of due process (advertising, oral reasons, etc.). The Military Procedure Act (LO 2/1989) governs these proceedings.
Ordinary Processes
Ordinary processes can be initiated by complaint, or ex officio. The judge judicial robes last method initiated by the Legal MF-Military or incitement of TMT whose jurisdiction belongs to JT or TMC for inciting the complaint. There are three variants:
- The complaint was aware of the fact that the called party and militar.
- The complaint may be verbal or formulated by writing. If in writing, the receiving authority shall verify the identity of the present and initial and stamp the pages that will contain it.
- Orally recorded by the authority or officer who receives it as a declaration, expressed to her the identity of the formula and how many stories have the complainant on the occurrence and its authors after which motivates the information presented.
Investigation and Summary Phase
A complaint is practiced under the direction of the FJM, used to determine whether the case is filed or is in progress. In the case proceed to reiterate the complainant may file his petition before the start of JT. The interested party may appear in the proceedings, to which end they will be offering shares.
Distinguished military ordinary, synthesis phase, the intermediate phase, and phase oral.
In the summary phase, the main task is to determine the nature and circumstances of the individuals involved and the applicable criminal procedure. Otherwise, the crowded ordered by commanders. Controls, Heads of Unit, are required to organize the training of the affidavit are aware of the commission of a crime within the jurisdiction of military courts in cases in which it was committed by whom they are subordinate or has been demarcation attack in place or are planned on its crowded atribuciones.
The investigation will be limited to the initial investigations of crime investigation and the guilty, the arrest of this if necessary, removal of the corpse, and request for autopsy where appropriate, assist victims and collect all effects, instruments, and evidence of crime. As soon as the JT authority becomes aware of facts or receives the crowded initiate the corresponding criminal process, ratifying or nullifying, if applicable, the prison agreed, raising it to prison if there are reasons for this.
Summary and Trial Proceedings
The summary integrates those measures and actions aimed at crime investigation and verification, determination of responsibilities, and required personal protective measures and real. Measures may be granted ex officio or upon request by individuals (Attorney, private prosecutor, and defender) provided useful, relevant, and not prejudicial to the summary. The steps to be rejected again may be proposed by the parties in the act of trial.
Once the investigation proceedings are completed, the JT shall order the conclusion of the summary, which must be notified to the parties within 5 days to manifest their conformity or not in relation to that conclusion. The JT will raise the appropriate actions to the TMT, given the parties to appear before it within 5 days. These actions received are passed to the rapporteur Judge that training for 5 days, in answer to the Court on the confirmation or revocation of the order of completion.
If the first step will be to issue an order for the opening of oral proceedings shall be dismissed unless, if the latter will return the file to the JT with the pieces of evidence that is needed to practice the steps to expressly indicated. It might be that instead of proceeding to open trial shall be dismissed either agree on a definitive lack of fact, atypicality of it, death of the suspect, etc. or already provisionally lack of accreditation of the offense or lack of evidence to support an indictment.
The Court must agree to the opening of the trial if either party so requests, except the fact atypicality may dictate the dismissal. If only person the FJM and has sought dismissal, meaning the Court wrong such a request, can this offer shares to the victims or, where appropriate, apply to the higher echelons of FJM (Attorney judicial robes) order your lower hierarchical request opening of trial. If it failed the two alternatives is inevitable.
Opening of Trial and Presentation of Evidence
In the opening of the trial the Court issue a Decree declaring open, passing first to the FJM action after the private prosecution and, where appropriate, civil actor for within 5 days, extendable to 10, to submit their written qualifications. It shall cause the accused and the civil responsibility numbered submit written findings and correlative to the writings of qualifying the charging parties, it being possible at this time and in later ones (the view) (this can not be offenses which are worth more than 3 years and no loss of employment.
The Tribunal must rule on the admission or not the evidence offered by the parties in their written skills as well as fixing the date, place, and time for holding the vision vista.
Trial Procedure
The trial begins with the opening session by the Auditor-President, read by the Secretary of pointing, questioning of the accused by A. Pte, practice tests, final grades, reports, questions eventually the parties to the Tribunal, and the last word of the accused after which it shall close the trial and given to statement will be issued immediately after the hearing.
Juvenile Justice: Procedure and Principles
Territorial Jurisdiction and Pretrial Stage
The territorial jurisdiction of the court that will prosecute (juvenile court) and if there was a connection to crimes committed in different places the court shall have jurisdiction in the place of domicile of the minor and, failing that, proceed to the forums application of art 18 of the Code of Criminal Procedure, courts of gravity, is temporary and out of order.
The pretrial stage juvenile court will intervene only to ensure respect for fundamental rights and freedoms of the child along the investigation.
Instruction by the Prosecutor
The instruction is initiated by the Prosecutor which presupposes two judgments:
- That the facts of which has learned are plausible, have relevance in the commission of criminal and have been involved one or more minors.
- The interest of such child or children not advised to avoid the initiation of the record of reform and its effect as a preliminary practice.
A series of preliminary measures are taken for the purpose of deciding whether or not to admit the complaint.
Objectives of the Instruction Phase
The instruction phase has two main purposes:
- To establish the facts of which have been reported.
- Propose concrete measures of educational content-based penalty in report called technical team composed of educators, psychologists, social workers, etc.
Practice proceedings may be ex officio or ex parte, and its denial can be appealed while playing his request at a later time before the juvenile court by the parties if improperly understood.
Precautionary Measures and Detention
The precautionary measures in the instruction, will Juvenile Judge. Custody noting that it can not last more than 24 hours, following which either the child should be placed at the disposal of the MF or to proceed to the release of that child. The MF has 48 hours to decide whether to release, if he wishes to discontinue or initiate the case. In any event after 48 hours indicated, not having released the minor must be to justice (the legal detention period is 72 hours since the arrest was made).
Conclusion of the Investigation
The statement ends with a statement of the MOF (which should be referred to juvenile court) on two ends: namely, whether or not there is sufficient justification for the minor’s participation in the allegations and, on the other hand, the personal and social circumstances the child advocate, where appropriate, the imposition of any educational measure. The MF shall, as appropriate, request a stay by one of the reasons specified in the CPP.
Intermediate Stage
The Prosecutor shall be referred to the juvenile court file, his written statement (made by the Prosecutor and the injured), do offer further evidence and notify the minor’s Counsel the beginning of this phase. Once the juvenile court has received the written statement shall set the hearing procedure called prior to the hearing called, whose purpose is that counsel’s minor rise within 5 days your own written statement.
In this phase can occur under the child, accepting the terms proposed by the Prosecutor and if they are given the requirements (controlled by the Juvenile Judge).
Hearing Phase
The date and time of the hearing shall be fixed, which will be held with or without advertising at the discretion of juvenile court, not, in any case, the dissemination by the media of the process; images of children. The child’s attendance at the hearing establishing its need, unless the judge decides otherwise reasoned. The presence of the Counsel of the minor is mandatory, as is the presence of technical equipment the presence of representatives of the child, attendance is optional, unless the court, after hearing the parties and technical team, decide their exclusion Under a reasoned decision.
A new attempt at conformity is possible, and if conformity has not been agreed upon, the dismissal phase is initiated with any proposals or arguments. The practice of evidence proposed by the parties in their pleadings shall be carried out. The judge shall hear the Prosecutor, Attorney, and representatives of technical equipment for the evaluation of evidence, legal status, and validity of the proposed measures must finally listen to the child.
Resources and Sentencing
Once the hearing has ended, the judge shall pass sentence within 5 days. Requirements include orality, motivation, and consistency, and it must be written in language understandable to the minor.
The possibility exists, ex officio or ex parte, for suspension of the implementation of the measure in a trial period if the child meets the following conditions:
- The minor is not convicted by a final sentence for crimes committed during the duration of the suspension.
- The child should make a commitment to rejoin society.
The court may refer the suspension of the implementation of action or conduct probation.
Sentences dictated by the juvenile judges can be appealed against to the Provincial Court establishes an appeal in the doctrine of unification of the various provincial courts that are contradictory if or decisions of the 2nd Chamber of the Supreme Court.