factors; (c) the absence of legal mechanisms or criteria to verify the existence of illegal conduct meant that article 332 did not meet the requirement of taking the maximum care to ensure that the State’s punitive powers are administered respecting the fundamental rights, and (d) 22 of the inmates of cell No. 19 “were in [preventive] detention exclusively for the crime of unlawful association” (supra para. 36). 101. Furthermore, the Court notes the concerns expressed by several bodies of the United Nations and by domestic authorities with regard to the definition and/or application of the offense of unlawful association regulated by article 332 of the Penal Code. In this regard, the Honduran National Human Rights Commissioner indicated that, since mere membership in a “mara” or gang is an offense, by considering that an individual may belong to this type of organization, the police act as if it was a situation of flagrante delicto, which “is not limited to a specific act, but becomes a status.”101 For its part, the United Nations Human Rights Committee102 has expressed its concern about the common practice of arrests based on suspicion, including mass roundups of people based on appearance alone and without a prior warrant from a competent authority. The United Nations Committee against Torture103 has also expressed its concern owing to the fact that a presumed participant in unlawful association can be deprived of liberty without a warrant and that pretrial detention is mandatory. The United Nations Committee on the Rights of the Child104 has expressed its concern about systematic preventive detention based on article 332 of the Penal Code, while the Working Group on Arbitrary Detention105 has stated that the application of article 332 poses serious problems, among others, because the crime of unlawful association is defined as a continuous offense, which keeps the young suspects in a situation of “permanent flagrancy” and the Inter-American Commission106 has indicated that, by granting such a broad margin of discretion, article 332 makes it possible to detain arbitrarily a large number of boys, girls and adolescents based on the mere perception that they belong to the mara. 102. The Court also recalls that, in this case, it found proven that the reform of the definition of the offense of unlawful association established in article 332 of the Penal Code, increased the penalties for this offense, while the text included explicit mention of the maras as a form of unlawful association, and this initiated the common police practice of arrests based on suspicion and mass arrests based on external appearance and without a warrant from a competent authority (supra paras. 26 and 27). This was reiterated by the different expert witnesses in the case, who also warned about the problems of the said definition in light of the principles of legality and culpability.107 101 2003 Report of the National Human Rights Commission (CONADEH), Chapter II: Security and Justice (file of attachments to the merits report of the Commission, tome II, folio 981). 102 Cf. U.N., Human Rights Committee, Concluding observations, Honduras, UN DOC CCPR/C/HND/CO/1, 13 December 2006, para. 13. 103 Cf. U.N., Committee against Torture, Concluding observations, Honduras, UN DOC CAT/C/HND/CO/1, 23 June 2009, para. 19. 104 Cf. U.N., Committee on the Rights of the Child, Concluding observations, Honduras, UN DOC CRC/C/HND/CO/3, 2 May 2007, para. 80. 105 Cf. U.N., Working Group on Arbitrary Detention, A/HRC/4/40/Add.4, 1 December 2006, paras. 86 to 92. Report on Mission to Honduras, UN DOC 106 Cf. Inter-American Commission on Human Rights, Juvenile Justice and Human Rights in the Americas, Document OEA/Ser.L/V/II. Doc. 78, of July 13, 2011, para. 131. 107 In this regard, Marco Antonio Canteo stated that “because the definition of the crime of unlawful association does not establish the scope and characteristics that define membership in a mara or gang, it is extremely difficult for the Public Prosecution Service to develop the factual basis and bring to trial those accused of this offense. […] This opens up a latent possibility that it is the agents of justice […] who complete the parameters of the definition owing to the said imprecision, thus violating the principle of legality, as it relates to the absolute 29