A minor has also responsibilities when he is regarded as a proof. He can be too the victim and not only a witness, which increase the precautions established by the law when the Instructor judge takes him declaration.
Notwithstanding its condition as a minor, a witness or a victim of a crime is obliged by the law, in this case the Spanish Penal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), to declare during the instruction (art. 410 LECrim) and also during the trial (art. 702 LECrim), in both cases the minor has to share with the Instructor Judge or the Tribunal what he knows about the crime. But due to its lack of maturation the LECrim contains some precautions aimed to reduce the effect of the penal procedure on its development. There are two essentials articles that we have to take into account when we talk about the declaration of a minor during the instruction. Those articles are the article 433 and the article and the article 448. The former guarantee the integrity of the psychic health of the victim of a crime when it is a minor, it is done by the possibility of the Instructor judge of take declaration to the minor through a specialist and also avoiding a direct contact with the suspect, since the accusation´ s questions can be asked to the victim indirectly with the help of the specialist. The latter article, the 448, has a broader scope because apply not only to the victims, but also to the witnesses, although its content is less developed, it only stablished the possibility of avoid the visual contact between the victim and the suspect during the declaration of the minor.
The thing is complicated when the minor is the the victim of a crime committed by one of the persons of the article 416. This article tries to solve the moral dilemma of a witness who has family relations with the suspect of a crime, it allow to the witness to elude his obligation to declare during the instruction. In this case the doubt arises of who has the right to exercise the dispensation guaranteed by this article, if is the parents of the minor or the own minor. This is important because if this right was exercised during the instruction by the parents of the minor, and after, for example in appeal, the Tribunal declares that it should have been exercised by the minor, the right of defense of the suspect could be harmed supposing the nullity of the sentence based on an infringement of essential procedural laws (art. 238 and art. 240 LOPJ). The polemic is as consequence of the lack of regulation of our LECrim, because it doesn’t say explicitly at what age a minor has the capability by his own to exercise the dispensation. This problem has been solve by our Tribunal taking into account other precepts of our other laws, for example the Spanish Civil Code says that a minor older than 12 years, has the right to accept its adoption, or the emancipated older than 16 years has the right to get married, or the Spanish Penal Law says that the older than 16 years can consent to have sexual relations. According to the above our tribunals have established that the minor between 12 and 14 years has to be examined by and specialist and the Instructor judge to determine if he has the maturity to exercise by his own the dispensation of the article 416. And derived of the above, a minor older than 14 years has the right to decide if he want or not, to the declare against any of the persons contained in the article 416. But the thing is even more complicated, the dispensation of the article 416 must be warned by the Instructor judge and also by the police before take declaration to any of the persons related with the criminal and within article 416, therefore if this dispensation is not warned to the witness before its declaration, the declaration taken by the police or the Instructor judge will be null for infringement of an essential procedural rule (art. 238 and art. 240 LOPJ). The immediate consequence of this nullity could be even the absolution of the suspect condemned in first instance according to this declarations, if they were the only supporting the sentence which condemned the suspect. The same dispense applied during the report of the crime (art. 261 LECrim) and during the declaration of the witnesses during the trial (art. 707 LECrim).
Another important thing which we cannot forget, is how the declarations taken during the instruction can be introduced during the trial. The art. 730 LECrim allows to use as a proof this declarations, thus breaking the general rule by which the only the valid proof to destroy the presumption of innocence of the accused is the proof practiced during the trial. Anyway the LECrim established special precautions, since the declarations of the minor taken according the article 433 should be recorded in video. But this is not the only requisite to its validity in the trial, the declaration taken during instruction should have been taken guaranteeing the right of defense of the accused, it means in front of the Instructor judge and the suspect´s lawyer, with the particularities of the article 433 and 448 as we have seen.
Hence, as we can see from the above. The declarations of a minor is not an easy matter, we have to be careful with the possibilities established by the law to not harm the integrity of the minor, how the dispensation has to be exercised, and take into account that later may have used as a proof during the trial.