4
with the Rule of Law. Strictly speaking, said respect is also inherent to the public
interest, which would suffer if the dignity of the individual were abridged and his or
her rights denied.
The aspects under discussion in this case pertain to the
substantive or material and to the procedural issues of justice regarding juvenile
offenders –or alleged offenders-. These include those pertaining to coercive measures
or detention, as well as executing measures ordered by competent authorities.
14.
Once again we must stress that penal or quasi-penal social control, pertaining
to minors, is a measure of last resort. The legal definitions of behaviors that justify
punishment by the State must refer to actual undue detriment to legally established
rights, not merely to situations of alleged risk or danger that lead to suspicions –
subject to the discretion of those observing them- that it is possible that a
transgression may occur, and on these “grounds” to activate the repressive means
of the State. In any case, it is necessary to develop a rational classification of the
unlawful behaviors, distributing them in well-substantiated categories, taking into
account the different gravity of the offenses and consequently regulating juridical
reaction, without incurring in the excessive actions typical of an authoritarian
system. Certainly there is a need to prevent behavior that is injurious to legal rights,
and the police play this role under the Rule of Law, but said prevention does not
authorize unrestricted actions in face of behaviors of youths that do not violate the
legal order, or that do so only with scarcely significant or injurious actions that do
not constitute crimes and should not entail the treatment and consequences inherent
to the latter.
15.
The breakdown of limits to repressive action by public authorities and invasion
of the natural areas of individuals’ liberties –those of minors, in this case- does in
fact constitute a serious threat to the Rule of Law. All this leads to the need to
respect the sphere of free behavior and to carefully establish, within the legal
framework, those actions that are gravely injurious to legal rights, in face of which it
is legitimate –pursuant to a criterion of material, not merely formal legitimacy- to
activate the punitive function, as opposed to minor offenses, which must be dealt
with by other means and instruments, both public and private.
16.
In this regard, it is necessary to resort to legitimate means to attain just
solutions. This includes proceedings before State bodies, entrusted with the final
decision, and the alternative means that remove the hearing and solution of the
problem from the sphere of public justice. The principle of guarantees must also
prevail in said proceedings, which does not impede State action pursuant to its
legitimate purpose and authority, but sets in the hands of private citizens the
possibility of broadly exercising the right to defense, with all the powers and actions
that it entails.
17.
In this setting, even in cases of mere misdemeanors, not of crimes,
presumption of innocence must apply, together with the burden of evidence upon the
authorities, providing defense counsel from the time of detention of the individual
and of arraignment –before he or she makes any statement that might compromise
his or her legal situation and determine the outcome of the proceeding-, information
on the cause for detention and the rights of the detainee, access to the case file, the
possibility of resorting to expedite remedies –especially those pertaining to
protection of fundamental rights-, celerity of the proceeding and access to conditional
discharge.
18.
It is indispensable for the procedural system to establish and ensure various
measures of control regarding the conduct and legality of the proceeding and due