Recensión al libro Solanes Corella, Ángeles: ¿Castigar o premiar? Las sanciones positivas, Tirant lo Blanch, Valencia, 2023, 320 páginas

Addressing minors in conflict with criminal law requires a global treatment that takes into account all family, social, educational and psychological factors that could affect their behavior, taking into account that they are in full physical, mental and intellectual development. For this reason, Directive 2016/800 of the European Parliament and of the Council of May 11, 2016 on procedural guarantees for minors suspected or accused in criminal proceedings, regulates the right of the minor to an individualized assessment of their specific needs; the LORPM does not expressly recognize this right, but contemplates the preparation of a report by the technical team on the psychological, educational and family situation of the minor, as well as on their social environment and, in general, on any other relevant. Our legislator has not considered necessary the transposition of Directive 2016/800, however, on March 23, 2024, the European Commission, within the March infringement procedure package, urges Spain to transpose Directive 2016/800, upon detecting "exhaustiveness problems." The purpose of these pages focuses on the analysis of the characteristics of the report prepared by the technical team, paying special attention to its procedural relevance, in order to highlight to what extent adjustments should be made to its regulation in view of European requirements.

In this work, the concept of natural penalty or poena naturalis will be analysed, understood as the set of damages and suffering that the author of a crime can experience as a consequence of its commission, as well as its foundations and limits. This will be followed by a study of natural penalty mechanisms in comparative law and a discussion of the possibilities that the Spanish legal-criminal system offers for its assessment and its treatment in Spanish case law. Finally, a proposal will be made to articulate various mechanisms that in certain cases allow the Judge to assess these damages in the determination of the penalty to be imposed.

Criticism of the evidentiary technique employed to substantiate mental illness as a ground for criminal non-accountability has been raised, albeit sporadically, from the perspectives of psychiatry and a recognised sector of criminal law doctrine. Both extra-procedural and intra-procedural factors have contributed to the establishment of a regulatory framework characterised by obstructing the relationship between mentally ill individuals and the criminal justice system, resulting in high rates of false negatives (deemed non-accountable) and false positives (deemed dangerous). In a commendable effort to address some of these shortcomings by altering the material burden of proof, the Supreme Court has amended its jurisprudence to acknowledge the extension of the right to the presumption of innocence to encompass culpability. Accordingly, this study examines the challenges surrounding psychiatric expert evidence and seeks to address the following question: Is the mentally ill individual declared non-accountable constitutionally “innocent”?