El menor infractorevolución jurídica y mitos del tratamiento jurídico-penal actual

Resum

The purpose of this first chapter encompasses a clear and determined goal, namely to set out the historical developments regarding the treatment of minor offenders, which has not been exempt from problems as a result of the difficulty of finding appropriate sources for the purposes of this review, regarding the forms or models for the legal criminal treatment applicable to children. However, this paper also encompasses the research papers and studies of illustrious criminalists that, through their words and methods of expression, have managed to put to paper certain casuistry that provides for the discussion regarding the fundamental grounds which have justified the treatment of children throughout history. Different studies focus their investigation on the methods by which children have been dealt with in a certain period of time in history after the carrying out of a specific crime or offence, without taking into account the overarching reasons that legally justified said treatment of children, above all during more archaic times. The foregoing is explained by reason of the lack of existence of papers or documents during the times of last century criminalists which made it difficult to determine, through comparative methodology, a basis regarding the legal criminal treatment which was applicable to minor offenders. Current times enable us to compare a larger number of papers and studies, in order to reach conclusions, through inductive methods, which are closer to the reality that justified the legal criminal treatment of children. On the other hand, the title of this chapter is sufficiently clear and concise, its purpose is to focus the central thread of the investigation not in the evaluation of the offence and the social consequences thereof, but rather in the special individual conditions of the �person� that is behind the commission of said crimes or offences; and the core purpose of this paper is to provide for the drastic decision to choose between the �crime� or the �child�.The special conditions related to physical weakness, mental disability and moral immaturity, which is expected of children and minors up to certain stages of their lives, have been evaluated throughout history from different perspectives that, both positively and negatively, have justified the legal criminal treatment thereof. In this respect, the primal legal vision of children, through the application of a unitary perspective that reconciles the different approaches, is encompassed by the concept that I shall refer to as �paradoxical utilitarianism � to the extent that the minor, in primitive times, was burdened by the concept of social inefficacy and lack of utility in respect of their acts in relation to the community that contradicted the �legal value� thereof which was focused on the utility for the expiation of the offence or for the recovery or restitution of damages, through the ease of application and the potential restitution effect thereof. Subsequently, in more advanced historical times, said responsibility was eroded, the executive arm of which was based upon paternal law, and was replaced by the protectionist doctrine which promoted the need to protect the rights of children. Said paradoxical utilitarianism of early days, began to erode in order to begin to conceive of the minor as a potential future citizen, that should be protected. Accordingly, during the historical developments of our legal precepts and doctrines, different models or systems have been followed in relation to the legal criminal treatment of minors until the establishment of the educational- disciplinary system of responsibility with a procedural guarantor function, far from the protective or protectionist system that applied the so-called �irregular situation doctrine�, that prioritised the social and community interests in relation to the citizenship education which is desirable for all children, regarding the happiness and enjoyment of children. It is not necessary to repeat that in this system, the consequences of the real lack of protection, the absence of individual guarantees, and the criminalisation of poverty were so brutal that they finally caused a counter-reaction. In this sense, the foregoing models may be classified as follows: a) the ownership model, that is based upon the absolute paternal ownership vis-à-vis children, b) the protectionist model which commenced in the 18th century, characterised by the search for the protection of minors, c) the personalist or individualist model in the 20th century, by which children become considered as individual rights holders.