Emilio García Méndez

Legal defense and the legitimacy problem of systems of administration of juvenile justice


1. Preliminary consideration. 2. The two challenges of legal defense. 3. Legal defense’s role in the current debate on juvenile criminal responsibility. 4. The juvenile criminal question in Brasil and Argentina.4.1.Brasil 4.2.Argentina 5. Conclusion.


1. Preliminary consideration

Emilio García Méndez
Photo: Luis Cetraro

There are not many who will publicly and head-on proclaim that children should not be considered legal subjects and, thus, should not have the inalienable human right to technical and legal defense.

That is why, it is possible that some of the observations made here in relation to the legal defense’s role may be considered obvious. However, I feel that the views against a good quality and consistent technical and legal defense, rather than the right to defense in abstract, are usually formulated with greater emphasis in an underhanded and indirect way, minimising and questioning its importance rather than denying it.

As regards children’s issues, although the anti-human rights rhetoric is very weak, bad and backward-looking; practices are, by contrast, consistently increasing. In my view, this aspect best characterises the current situation of children’s rights. In this area and, especially, in Latin American legal culture, regressive and conservative positions are usually expressed strongly at the case-law level, whereas they are virtually absent from the doctrine.

It is in this context that we have gradually lost the ability to see the obvious. In other words, to understand childrens and adolescents’ human rights beyond the rhetoric[1]. One of the modest aims that I set out in this brief article is to reclaim this simple dimension.


2. the two challenges of legal defense

I believe any serious current reflection on the issue of children’s human rights as a whole, and not only in relation to adolescents in conflict with the criminal law, should include as a priority one of its more systematically neglected aspects: the question of legal defense.

From a historical perspective, there are enough examples showing that legal defense has not only been systematically understood as an alien and unnecessary element, but more than that as a negative influence which must be suppressed in the interests of children’s welfare.

[1] The law clinic for minors by the Fundación Sur Argentina (www.surargentina.org.ar) through its specific practice carries out what could be labelled a criticism in action against all the rhetorical notions of “the right of the child to be heard”. In this clinic it is held that the right of the child to be heard or right to material defense (recognised in article 12 of the CDN) should be exercised in conjunction with technical defense, and only in this way it acquires procedural validity. In this regard, the increasing complexity of court proceedings requires the technical knowledge of a lawyer for a child to be both heard and for his claims to be given due consideration. The right to technical and material defense entail the recognition of a due legal process for children and adolescents, and consequently, as a party to proceedings, on equal terms with the other parties.
So the child has the right to be heard, to his claims to be given due consideration, to offer and check the evidence, challenge claims made by the other parties, be notified and appeal.


Emilio García Méndez – National Deputy of the party: Solidarity and Equality (Spanish: Solidaridad e Igualdad – SI); President of Foundation: Sur Argentina


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