The Legitimation of the Final Decision as a Guarantee for the Minor’s Interest

Within the Italian debate about youth justice several positions can be highlighted as far as the aims to assign to both the trial and the role of the judges are concerned. The importance of these several positions has recently increased since the minors had been recognized as plain subjects entitled to all the fundamental rights. Among the reasons of the dissimilarities is the different value that the agents assign to the knowledge other than the legal one. Since the rooted ‘restorative criterion’ of the punishment used to characterise interventions and guarantees has disappeared, a welfare culture centred on the rescue of the minor is emerging. It is based on a limited recourse to imprisonment and on a reduction of the punishment. Even though it is still a matter of discussion this trend focuses on the ‘interest of the minor’ which becomes more important than the role ascribed to the punishment. In the present use of the law which rules the criminal justice process (d.p.r. 448/88) the “minor’s interest”, taken as a general decision criterion, is still fully undetermined and diverges from those welfare insights it stemmed from. Far from coming out of an interplay among the different roles of the process in a strongly fixed decision procedure which could legitimise the final decision as a guarantee for the “minor’s interest”, this criterion is based on the reconsideration of each of the role which interpret and use it on the basis of different knowledge and competences (psychology, law, sociology, social policy). Consequently on the one hand the minor’s interest remains somehow undefined from a substantial point of view but on the other only 25% of the legal cases got to court in 2004. The crucial aims of the reform of the 80s: the construction of a guarantee system tailored on the minor’s needs and the attempt to keep the minor far from the penal process seem to be contradictorily accomplished. Most of the complaints is dealt with outside those procedural rules (that is during the preliminary session) which guarantee the minor’s interests. The minor him/herself is told to remain out of the penal circuit only because s/he remains far from the guarantees the trial brings along with it but not from the ‘preliminary’ decisions which prove to be not so legal or guaranteed. The research I would like to present has been carried out in a minor court in the south of Italy. I have tried to investigate the procedural character on a sample of 35 trials (1998-2002) to analyse the information exchange among different kinds of knowledge, to understand how social defence needs and minor protections needs prove compatible and whether the autonomy ascribed to the minor penal trial turns into a decision making structure based on given procedures in so far as to produce sentences legitimised by a strong process reconstructed and consistent interest for the minor. The outcomes show that in the analysed trials, procedures can’t be considered specific tools for the minor law but tools capable to administer minor justice which lacking substantial strength leaves the ‘management’ of minor crime politics to bureaucratic and paternalistic decisions (i.e. administrative decisions which do not bring penal guarantees along with them).